ED Legal Letter April 1997

What is an "Appropriate" Medical Screening Examination Under COBRA?

By Robert A. Bitterman, MD, JD, FACEP, Director of Risk Management and Managed Care, Department of Emergency Medicine, Carolinas Medical Center, Charlotte, NC.

Appropriateness, like nature, is "a mutable cloud which is always and never the same." Correa v. Hospital of San Francisco, 63 F.3d 1184 (1st Cir. 1995) quoting, in part, Ralph Waldo Emerson in Essays: First Series (1841).

Editor’s Note: Determining what constitutes an appropriate medical screening examination in compliance with COBRA can be very troublesome. Well-intentioned guesswork on the part of hospitals and physicians has been the source of numerous HCFA citations and civil lawsuits. Increasing pressure from managed care organizations to reduce costs and divert patients to preferred settings merely complicates an already murky issue. Two issues regarding COBRA are, however, very clear: First, there is ample room for confusion on interpretation of the law, even among authorities. Second, violation of the law can not only result in fines and bad publicity, but may also effectively shut down a hospital, since few can withstand the withdrawal of Medicare funds.

Because this issue is a such a potential landmine for hospitals and physicians, it is imperative to be as knowledgeable as possible about COBRA interpretation. This article provides an in-depth analysis of the issues regarding COBRA that are of vital importance to ED and other hospital personnel.

Overview

COBRA does not define what constitutes an "appropriate medical screening examination." According to one appellate court judge, "Appropriate is one of the most wonderful weasel words in the dictionary, and a great aide to the resolution of disputed issues in the drafting of legislation. Who, after all, can be found to stand up for ‘inappropriate’ treatment."1

Most hospitals and emergency physicians understand that COBRA, the federal law also known as the Emergency Medical Treatment and Active Labor Act (EMTALA), requires them to screen all persons who present to the emergency department (ED) to determine whether an emergency medical condition (EMC) exists.2 Less well-understood, and much more controversial, are the required procedural elements of the medical screening examination (MSE), particularly the extent or scope that the screening must entail.

The purpose of this article is twofold: to review the interpretation of the screening requirement by the U.S. Courts of Appeals in contrast with the Health Care Financing Administration’s (HCFA) enforcement of the law through its regulations and investigations of hospitals, and to recommend practical policies and procedures that comply with COBRA and minimize medical risks to patients and legal liability risks to hospitals and physicians.

The Law

COBRA states: If "any individual" "comes to the emergency department," and a request is made on the individual’s behalf for examination and treatment, the hospital must provide an appropriate medical screening exam within the capability of the hospital’s emergency department, including ancillary services routinely available to the emergency department, to determine whether or not an emergency medical condition exists.3

Each of the elements of the MSE requirement can be examined through the following scenario and the the analysis that follows.

Case Study

A 35-year-old woman presents to a community hospital ED with a chief complaint of "migraine headache." An emergency nurse triages the patient and calls the patient’s private physician, who tells the nurse to send the patient to his office. The patient is not examined by the emergency physician on duty, nor does the nurse inform the physician of the patient’s presence prior to sending the patient to the private physician’s office. An hour later the patient returns and the private physician calls the ED with orders to give the patient 75 mg of meperidine IM and 75 mg of Vistaril IM for her headache. The nursing staff administers the medication and allows the patient to leave the ED without being seen by the emergency physician. Six hours later the patient returns by EMS after a seizure and dies from a subarachnoid hemorrhage. The family brings a wrongful death action under COBRA against the hospital and the emergency physician on duty for failure to provide the patient with an appropriate medical screening exam.

Which Hospitals and Which Physicians Must Comply with COBRA?

COBRA is actually a condition of participation in the Medicare program: By accepting Medicare payment, hospitals with an ED "voluntarily" agree to abide by COBRA.4 Hospitals that do not accept Medicare funds, such as some Veteran’s Administration hospitals and a few private hospitals (generally psychiatric hospitals) do not have to comply with COBRA. Doctors’ offices, public health centers, clinics, and independent free-standing urgent care centers are also exempt, even if they accept Medicare funds, because they do not meet Medicare’s legal definition of a hospital. Thus, a facility must meet the definition of a hospital, must operate an ED, and must accept Medicare funds to be obligated under COBRA.

All physicians who treat patients in a Medicare-participating hospital, not just emergency physicians, are subject to the legal duties of COBRA. The fact that on-call physicians and admitting and consulting physicians have obligations under COBRA is not well-known outside the emergency medicine community. Physicians are deemed to be agents of the hospital and the duties attach to physicians by virtue of their accepting hospital medical staff privileges and responsibilities.

What is the Purpose of the Medical Screening Examination?

The purpose of the medical screening examination (MSE) is to determine whether a patient has an emergency medical condition (EMC), as that term is defined by law. An EMC exists if an individual has "acute symptoms of sufficient severity (including severe pain) such that the absence of immediate medical attention could reasonably be expected to result in placing the individual’s health in serious jeopardy, serious impairment to bodily functions, or serious dysfunction of any bodily organ or part."5 Or, a pregnant woman who is having contractions has an EMC if "there is inadequate time to effect a safe transfer to another hospital before delivery, or if the transfer may pose a threat to the health or safety of the woman or unborn child."6

This is vague, broad language. Does a 4-year-old with wheezing have an EMC? What if the respiratory rate is 32/min, or 40/min? Does an 18-year-old college student with a fever and sore throat have an EMC? What if it is a "high fever" and a "bad" sore throat? Does a 70-year-old insulin-dependent diabetic with 3-4 watery stools have an EMC? What about 6-8 stools in 24 hours? Or the stools contain mucous or blood? Competent physicians can very reasonably disagree whether certain symptoms are acute, immediate, or serious enough to be "emergency medical conditions."

The HealthCare Financing Administration (HCFA), the agency charged with investigating and enforcing COBRA, offers little help in determining what emergency conditions are. Its regulations only specifically define psychiatric disturbances and/or symptoms of substance abuse to be sufficiently severe medical symptoms to warrant the label "emergency medical condition."7

It is extremely important that physicians determine whether an EMC is present and document the presence or absence of an EMC in the medical record. Physicians should use language that tracks the legal definition of EMC and also document their impressions using legal terms, such as "no EMC found." Our clinical understanding of common medical terms no longer matters; the standard of emergency care is now legally defined by COBRA. As one appellate court judge aptly stated, "The statutory definition renders irrelevant any medical definition."8

If the MSE does not reveal an EMC, then further care of that patient is not dictated by COBRA, so COBRA’s provisions governing stabilizing treatment, transfer of the patient, involvement of on-call physicians, and the control of managed care patients no longer apply. Thus, hospitals may refuse further treatment to patients without an EMC or refuse to accept them in transfer. On-call physicians may refuse to care for uninsured patients without an EMC. Managed care plans can require prior authorization, mandatory transfer, or outright refusal of further care to patients without an EMC. Clearly, the determination of whether or not an EMC is present has enormous ramifications and substantially impacts the working relationships of emergency physicians with the other providers involved in the delivery of emergency services.

Who is entitled to the MSE?

As COBRA states, "any individual" who "comes to the ED," and a "request for examination or treatment" is made on that person’s behalf, is entitled to an MSE.3

"Any Individual"

The courts have interpreted the language literally, so anyone who presents to the ED must be screened, not just patients covered under Medicare.9 COBRA was the first instance in which Congress used the Medicare program to directly regulate the delivery of healthcare services to non-Medicare patients.10 Whether the patient is indigent, a member of a managed care plan, covered by Medicare or Medicaid, or a private patient of a medical staff attending physician is irrelevant; the hospital must provide all with an MSE.

Illegal aliens are also entitled to the MSE, much to the chagrin of border hospitals, even if the alien takes a plane into the country with the express purpose of seeking medical care at a U.S. hospital. The courts note that the plain language of the law doesn’t state "any US citizen."1

COBRA also vitiates state consent laws for minors. If a 13-year-old babysitter brings a 2-year-old child to the ED and requests an examination or treatment for the child, the hospital must provide the MSE. (See ED Legal Letter 1997;8:1-12 on consent for minors for further detail.) COBRA is federal law, so it preempts any conflicting state law on the issue. Certainly the hospital should attempt to contact the child’s parents, but the hospital should not delay the MSE to obtain consent from the parents, regardless of how trivial the child’s complaint initially appears. If the MSE reveals no EMC, then the hospital can wait on the parents before proceeding with further evaluation and treatment.

"Comes to the ED"

HCFA’s regulations state that anyone on hospital property is deemed to have "come to the ED" for purposes of COBRA. HCFA further defines hospital property to include "ambulances owned and operated" by the hospital.11 If enforced, HCFA’s interpretation could significantly disrupt regional trauma and EMS systems. If a hospital-owned ambulance (and certainly this includes a hospital-owned helicopter) participates in the EMS network, then the hospital’s ambulance may have to return patients to its own hospital for the mandated MSE, regardless of whether it was clearly in the patient’s best interest to be taken to a closer or more appropriate facility.

One could argue that an ambulance directed by the EMS Medical Alert Zone is not "operated" by the hospital, or that the patient "refused" or did not "request" examination or treatment at that hospital, or that HCFA is over-reaching in its reading of the statute. But HCFA’s interpretation is existing law until a court logically rules otherwise; the issue has not been litigated yet.

Presently, an advisory committee convened by HCFA is working to recommend changes to HCFA’s interpretive guidelines and methods of enforcement. HCFA recognizes the problems generated by its "comes to the ED" interpretation and appears amenable to resolving the issue through consensus agreement among all the constituencies represented on the advisory committee.

Regardless of HCFA’s current expansive view on "comes to the ED," clinicians should do what they believe is in the patient’s best interest and worry about the regulatory or legal consequences afterward. Which would you rather defend to a jury of your peers—diverting a patient to a needed trauma center or closer facility, or actions taken because some lay HCFA bureaucrat without any medical training, expertise, or experience said that you should behave that way?

Non-hospital-owned ambulance and helicopters directed by a hospital’s telemetry base station, however, are not deemed to have "come to the ED" of that hospital. The Seventh Circuit Court of Appeals addressed this issue in the famous case of Johnson v. University of Chicago Hospitals.12 The plaintiff’s infant daughter stopped breathing, so the plaintiff called 911. Paramedics arrived, contacted the University of Chicago Hospital (UCH) telemetry base station, and began treatment under the direction of the UCH nurse telemetry operator. However, since UCH was on "bypass" due to a lack of pediatric intensive care beds, the nurse told the medics to transport the infant to a different hospital, even though they were only five blocks from UCH. The patient was treated at the other hospital, transferred to still another hospital, and died soon thereafter.

The court originally agreed with the plaintiff, holding that a person "comes to the ED" once the individual is under direction of the hospital’s ED and the hospital is cognizant of the patient’s medical condition. Later, though, after much public outrage and the potential threat of hospitals refusing to participate in EMS telemetry, the court, in a highly unusual action, reversed itself, stating the neither the language of COBRA nor the legislative history supported extending "comes to the ED" to include telemetry contact.12

Similarly, telephone contact with the hospital’s ED does not trigger COBRA’s MSE requirement. In the case of Miller v. Medical Center of Southwest Louisiana,13 the hospital told a physician over the telephone not to bring an uninsured patient to its ED. The plaintiff claimed that the subsequent delay materially worsened the patient’s condition. The court held that since the patient didn’t actually physically present to the ED, the law did not apply.13 However, if the physician had ignored the hospital’s admonition and brought the patient to the hospital, then the hospital would be required to provide an MSE, and to the same extent as it would any other patient who presented with similar symptoms. Just because a hospital is "dumped upon" does not allow it to avoid its duty to screen all patients.14 How or why the patient arrived at the ED is irrelevant.

"Request for Examination or Treatment"

The request for examination or treatment of a patient can be made by anyone on behalf of the patient. It does not have to come from the actual patient, a family member, or a legal guardian. Requests for drug testing or police blood alcohol concentration sampling may be sufficient to constitute a "request for examination or treatment" under COBRA. In the case of Evans v. Montgomery Hospital, the court held that the patient’s act of signing the hospital’s "Consent to Medical Care" form and the patient’s condition of "lethargy and inability to sit up without assistance" were sufficient to indicate that the patient sought treatment for a medical condition.15 The police had arrested the individual for driving erratically and taken him to the hospital ED for a blood alcohol test. After the blood draw he was taken to jail; the next morning he was found dead in his cell. Any person appearing to need medical intervention should always be offered medical care, and should not be allowed to refuse care until a physician explains the risks of refusal and determines that the person is legally competent to refuse.

Typically, though, blood alcohol or drug testing requests should not require the hospital to perform an MSE, since generally no "request for examination or treatment" is made. However, to protect the hospital, the nurse or physician involved should always specifically document that the patient did not request examination or treatment for any medical condition. Alternatively, separate consent forms that indicate the patient’s intentions appropriately could be used whenever patients come to the ED solely for tests, prescription refills, or for any other reason than "examination or treatment."

Who Must Perform the MSE?

The law does not specify whether a physician, nurse, or other healthcare provider must perform the MSE. HCFA requires the screening exam be done by "qualified medical personnel" and requires the hospital’s governing body designate who is qualified to perform medical screening.16 HCFA intends to hold the governing body of the hospital "properly accountable for this function."17

Triage

Triage by a nurse is not an MSE. The purpose of triage, as practiced in most hospitals, is to ascertain the nature and severity of a patient’s complaint and to determine the order in which patients are seen by a physician. The purpose of the MSE is to determine whether the patient has an emergency medical condition. HCFA and the federal courts have uniformly held that triage of patients is not sufficient to constitute a COBRA-mandated medical screening examination. HCFA has cited many hospitals for violating EMTALA when its triage nurses evaluated patients and then referred them out of the ED to a managed care clinic or a physician’s private office without a physician examining the patient in the ED, as in the previous case study.18

Some hospitals, notably the University of Southern California-Davis, allow specially trained nurses, under direct physician supervision, to perform screening examinations. However, these examinations are not triage examinations; they are much more extensive and are directed at determining whether the patient is suffering from an emergency medical condition.19 Furthermore, the nurses are blinded to the patient’s insurance status and the MSE is conducted in a non-discriminatory fashion: All patients without an EMC are denied access to the ED physician, not just Medicaid or managed care patients.

HCFA, though, reserves the right to not accept the hospital’s designation and may determine retrospectively, based on the circumstances and the patient’s condition, that the designated person did not have sufficient medical training or expertise to conduct the medical screening exam.20 In fact, HCFA has already cited some hospitals for violating COBRA because the hospital did not have a physician conduct the medical screening examination, even though the hospital had designated nurses capable of performing that examination.21

Private Patients of Members of the Hospital’s Medical Staff

If the hospital designates physicians to perform its MSEs, it does not mean that an emergency physician must do the examination. Many times other members of the hospital’s medical staff will meet their regular or "private" patients in the ED; that private physician’s evaluation of the patient then constitutes the hospital’s required MSE. However, the hospital should have prearranged procedures for handling private patients that do not unduly delay a patient’s MSE, or the hospital will be liable under COBRA for failure to provide an "appropriate" MSE. All private patients should be triaged according to the hospital’s standard screening protocols. Then, if the patient’s private physician has not arrived by the time the emergency physician would normally examine the patient (as determined by triage acuity or by order of arrival), then the emergency physician should perform an MSE. If no EMC is found, then the patient can wait for his or her physician to arrive. If an EMC exists, then the emergency physician should undertake appropriate stabilizing treatment until the patient’s physician is physically present in the ED to assume the patient’s care. I personally do not charge for the MSE when no EMC is present. I consider the exam a service to the patient to determine that their condition does not require immediate intervention, a service to my hospital to meet its obligation under federal law, and a service to my medical staff colleagues that ensures appropriate care for their patients and maintains their relationship with the patient. I do charge for my services whenever an emergency exists and I initiate treatment.

A common practice, particularly in rural hospitals, is private physicians sending patients to the ED and then calling in phone orders for the ED nurses to administer injectable medications, such as the narcotic analgesics in the case study. The patients are not examined by the emergency physician on duty in the ED. This practice violates COBRA, because the hospital did not provide the patient the same MSE it would to any other patient presenting with the same complaint. Whether the patient’s private physician examined the patient in the office only moments before sending the patient to the ED is irrelevant. This requirement of COBRA may not be cost-efficient medicine but both HCFA and the courts agree that the law mandates the hospital provide these patients an MSE in the ED.

The American College of Emergency Physicians’ (ACEP) Policy Position states that medical screening examinations should be performed by a physician.22

Performing MSEs: To What Extent or Scope?

If triage is not sufficient to be an MSE, how extensive must an examination be to constitute an "MSE"? The federal courts hold that there are two components to an "appropriate" MSE. First, the examination must be "reasonably calculated to identify critical medical conditions," and, second, the "exact same level of screening must be uniformly provided to all patients who present with substantially similar complaints."23

"Reasonably Calculated"

Since the stated purpose of the MSE is to determine whether an EMC exists, the hospital should conduct whatever examination is necessary—"reasonably calculated"—to make that determination. It may take only a visual glance to rule out any EMC in a patient with a rash. But, if it takes a CT scan and a lumbar puncture to decide whether a patient with the "worst headache of my life" has a subarachnoid hemorrhage, then those tests and procedures are part of the MSE. Similarly, if it takes an on-call surgeon to decide whether a patient has an acute abdomen, then that surgical evaluation is an integral part of the MSE.

Use of Ancillary Services and On-Call Physicians

COBRA was amended in 1989 to add that hospitals must provide the screening examination within the capabilities of the hospital’s ED, "including ancillary services routinely available to the emergency department."24 Thus, if the ED usually has ultrasound, CT scanning, V/Q scans, and the like available, then it must use those resources if necessary to determine whether the patient has an EMC. This also means that if the emergency physician is undecided about whether the patient has an EMC, then he must use the on-call physicians to help make that determination. COBRA specifically mandates that hospitals provide on-call physicians to help determine if ED patients are suffering from an emergency condition and, if so, to help stabilize those conditions.25,26

HCFA’s regulations state that physicians generally available to patients at the hospital are considered to be available for the treatment of patients presenting to the ED, regardless of whether those physicians had previously been obligated by the hospital to provide such services.26 For example, if urologists or ophthalmologists regularly admit patients, provide consultations, and perform surgery at the hospital, then the service of a urologist or ophthalmologist must be provided to help screen ED patients for an EMC when requested by the emergency physician.

Hospitals, the medical staff, and the ED must cooperate to provide on-call services to emergency patients. It is important that the hospital and the medical staff be educated in their on-call responsibilities and implement policies and procedures to meet those duties. Hospitals should clearly identify what ancillary hospital services and which physician services will be routinely available to its ED, and at what times they will be available.

Hospitals should draft these policies, procedures, and availability standards carefully, using words such as "reasonable" or "appropriate," and avoiding specific time frames such as "available within 30 minutes." Otherwise, they will hold themselves to a standard they may not be able to meet and expose themselves to liability for "failure to follow their own rules."27

Uniform Screening

The courts state that not only must the screening examination be reasonably calculated to identify EMCs, but also that the exact same level of screening must be uniformly provided to all patients who present with substantially similar complaints. The courts premise their analysis on the stated goal of COBRA—to prevent disparate treatment among patients. In the two seminal cases of Cleland v. Bronson Health Care Group and Gatewood v. Washington Health Care Corporation, the courts held that appropriate means "care similar to care that would have been provided to any other patient, or at least not known by the providers to be in any way insufficient or below their own standards";1 and that what is appropriate is determined "not by reference to particular outcomes, but instead by reference to a hospital’s standard screening procedures."28 The other circuits have followed the analysis of Cleland and Gatewood, generally stating, "the hospital satisfies the requirements of COBRA if its standard screening procedures apply uniformly to all patients with similar circumstances."29

The only area in which the courts have disagreed is the issue of whether a mal-intended motive is necessary for a hospital to be liable under COBRA. The 6th Circuit in Cleland imposes liability for disparate treatment only if the hospital had an illicit motive.1 Every other circuit has imposed liability for disparate treatment regardless of the hospital’s motivation, citing the plain language of the law, which does not include motive as a necessary element to be liable under COBRA.

Managed Care Screening

Managed care plans frequently expect hospitals to provide different levels of screening for their enrollees. Managed care plans often request the hospital merely "eyeball the patient" or perform a clinical exam sufficient to determine whether or not the patient can safely be triaged to a managed care facility. Neither HCFA nor the courts condone this practice, emphasizing, again, the anti-discriminatory nature of COBRA.

One example may be illustrative: A 4-month-old presents with fever, cough, and wheezing. The child does not appear to be in extremis and clinically seems sufficiently stable to be sent to a managed care facility two blocks down the street, where a physician is willing and able to see the patient immediately. However,assume that normally to evaluate whether the child were suffering from an EMC, the emergency physician would get a pulse oximetry determination and a chest x-ray. If the hospital failed to provide those tests for managed care patients prior to sending them to the managed care facility, then, since it deviated from its standard screening protocol, its actions violated COBRA. It is precisely this type of differential treatment that the courts have determined is not allowed under COBRA, regardless of the hospital’s rationale for treating one class of patients different from another.

Similarly, hospitals cannot set up separate and different screening procedures for Medicaid managed care patients. Some states, hospitals, and managed care entities believe that the "waivers" received from the Clinton Administration allow them to alter emergency care of Medicaid patients to accommodate managed care techniques and cut costs. However, these waivers do not allow the states to sidestep the requirements of COBRA. Hospitals and emergency physicians that participate in such differential Medicaid screening do so at their own peril. Just in the last year, HCFA cited hospitals in West Virginia and Georgia regarding differential screening examinations of Medicaid patients. In Colorado, a hospital was cited for creating three different forms of medical screening. The hospital triaged non-urgent Medicaid managed care patients away from the ED without an MSE, provided only "eyeball screening" to send other managed care patients to their primary care physicians, and provided its customary screening by emergency physicians to the remaining patients. The screening examination must simply be the same for everyone, regardless of the pressure managed care places on the hospital to do otherwise for its enrollees.

Can the MSE Be Performed Outside the ED?

After triage, many hospitals send pregnant women with isolated pregnancy-related complaints to a labor and delivery (L&D) area outside the ED for evaluation and treatment. The L&D examination constitutes the hospital’s MSE process for these patients. Such protocols comply with COBRA, as long as all patients with these complaints go to L&D for their MSE. If only private patients, only Medicaid patients, or only managed care patients go to a designated L&D area and all others remain in the ED or go to a different L&D area, HCFA would view that as discriminatory treatment in violation of COBRA.

The same considerations hold for an urgent care or fast-track settin