Keep EMTALA in mind while taking SARS action

Expert addresses prescreening issue

Don’t let concerns about severe acute respiratory syndrome (SARS) prompt measures that will put your hospital at risk for violations of the Emergency Medical Treatment and Labor Act (EMTALA), warns Stephen Frew, JD, a web site publisher and longtime specialist in EMTALA compliance based in Loves Park, IL.

In a recent article on his web site, www.medlaw.com, Frew says he was asked by a nursing publication to comment on a story about how to prescreen patients at the curb to ensure they were not SARS patients.

"Come on, folks," was his response. "How many hundreds of EMTALA violations are you going to induce without the slightest statistical chance of successful interdiction of the infinitesimally small infected population?"

"SARS is a droplet infection according to the current public health statements," says Frew. "We have known how to reduce exposure to droplet infections for more than a century."

Hospitals already are required to have "universal precautions" for other types of diseases transmitted by droplet and body fluids, he points out. "The only chance of pre-emption is to use them for this situation as well."

"The president has issued an executive order adding SARS to the permissible quarantine list," Frew adds, "but that does not indicate that EMTALA is repealed."

Handling informed refusals’

In another piece of EMTALA advice, Frew poses this question to hospitals: "When someone walks out of your ED, refuses a transfer, or refuses an ambulance, how are you document- ing that?"

Many facilities use their standard Against Medical Advice (AMA) form, but that usually does not meet EMTALA standards, he says. That’s because the EMTALA requirement for a refusal form (Informed Consent To Refuse) requires a lot more documentation than the typical AMA form, Frew adds.

"Specifically, the form must provide individual risks for the patient for the element of care that was refused," he explains. "Most AMA forms just have some lame language like, The risks of refusing care have been explained to me.’ Sorry, that’s not good enough."

Similarly, he says, putting "risks and benefits discussed with patient and patient voices understanding" also is not good enough. "You have to list exactly what you informed’ the patient about the risks of refusal, so that when [the patient] signs the form, you have evidence that it is an informed refusal."

If the particular issue is not listed, Frew says, the patient is not informed.

"Another nasty part of the AMA," he adds, is that many insurance companies shut off coverage for everything associated with the visit if there is an AMA.

"Don’t shoot yourself in the foot," Frew cautions. "Get refusals, not AMAs. Use AMAs only for serious issues arising after a full exam — the person who desperately needs blood but refuses due to religion. In those cases, get both."

(A sample refusal form is available on Frew’s web site at www.medlaw.com/forms.htm.)

Disaster plans addressed

Frew also reminds hospital EDs that temporary privileges granted to volunteer physicians, nurses, and other licensed health care professionals responding to a disaster must be referenced in the facility’s emergency preparedness plans and stated fully in medical staff bylaws.

"This is different from allowing emergency privileges to a staff member to provide services in a lifesaving situation," he points out. "It is also different than temporary privileges to cover a staffing gap or while full credentialing occurs.

It runs contrary to existing Centers for Medicare & Medicaid Services (CMS) practice to cite a hospital that is on disaster status, Frew notes. Likewise, CMS personnel indicate that they are not likely to cite for someone exceeding privileges to provide a lifesaving intervention, he adds.

"Temporary staff, however, have caused EMTALA violations in EDs by not being familiar with policies and procedures, not knowing the resources available, not being responsive to regular staff input, and not having established loyalties to the institution," Frew says.

CMS frequently looks closely at the credentials files of medical and nursing staff in the ED to make sure they meet state and institutional credentials standards, he says, adding that failure to have all required certifications, licenses, and credentials in the file have been frequent causes for citations.

"Make certain that your credentials files are current on all of your regular personnel, verify that all policies and procedures criteria are met for all regular personnel, and be certain that all personnel are regularly retrained on EMTALA," Frew advises.

Temporary and float personnel must meet the same standards as regularly assigned personnel to withstand a CMS audit and to meet a hospital’s own policy standards, he adds.

"While some hospitals may find it difficult to fully staff with regular, experienced nurses and physicians," Frew points out, "the risk of violation and malpractice goes up dramatically when temporary personnel, infrequently involved staff, or float or agency personnel are used in the ED."