New EMTALA guidelines hot off the press: Here's what your ED needs to know

After a long wait and many delays, the revised EMTALA guidelines have taken effect; ensure that your ED is following these new policies and learn what this means for managed care

The long-awaited revised guidelines for enforcement of the Emergency Medical Treatment and Active Labor Act (EMTALA) have finally been published, effective July 14, 1998. ED managers have been waiting for the guidelines since June 1996, when the EMTALA Task Force held its first meeting.

"We have definitely taken some positive steps forward with better clarifications, but this is only the beginning," says Charlotte Yeh, MD, FACEP, chief of emergency medicine at New England Medical Center in Boston and a member of HCFA's task force on EMTALA. "Not all our questions were answered, but those that were addressed are significant improvements."

Here is an overview of the significant changes:

The medical screening exam (MSE) is a process, not an event. The guidelines clarify the definition of an MSE, giving the example of a severe headache that could require extensive testing, including a CT scan and/or lumbar puncture. "You can substitute chest pain or abdominal pain for that," says Larry Bedard, MD, FACEP, director of emergency services at Doctor's Medical Center, San Pablo and Pinole campuses and immediate past president of ACEP. "The screening exam is not necessarily a Level 1 or 2 code. It may be a comprehensive evaluation or level 5 code."

There is a clear acknowledgment that triage does not constitute an MSE, says Yeh. "The MSE is a process, not a single event, required to determine the presence or absence of an emergency medical condition," she explains. "That could be as simple as a history and physical, or as complex as multiple diagnostic procedures and ancillary services."

The new definition of a MSE is likely to affect the financial reimbursement an ED receives, says Yeh. "Because the definition covers such a broad range of services, it's important that any discussions with third party payors should assure payment for a full range of services, from simple to complex," she stresses. "Accepting a low level single fee may not cover the full range of services you are required to provide under the law."

Prior authorization is not allowed. The guidelines clearly state that prior authorization is not permitted before an MSE and stabilizing treatment, Yeh explains. "It was not ever permissible to delay an MSE, but before it was not as clear," she says. "Now, it's explicit as opposed to implicit."

Now, if a hospital calls for prior authorization, they are violating the law, says Bedard. "Because the guidelines also clarify that triage is not the same as a MSE, you can't have a nurse do triage and then turn around and call for prior authorization," he explains.

The change is extremely important, says Steven Frew, JD, a Rockford, IL-based health care attorney and consultant. "First and foremost is the flat out statement that there can be no prior authorization calls until there has been a complete screening and stabilizing treatment," he notes. "We often hear from managed care, 'Let's see it in writing.' Well, now it is."

Some procedures can be done outside the ED, if there is a follow-up plan of care. "There is a reference to deferring some testing for referral as outpatient basis, but only if a patient is under a plan of care," says Frew. "Many people thought this would be an opportunity to limit the amount of care given in the ED and allow referring out. But, it is clear that HCFA will still expect a high level of stabilization and treatment before the patient leaves."

If anything is necessary for diagnosis or stabilization, it's still going to have to be done in the ED, says Frew. "So, it really only allows for marginal testing and follow-up that was not permitted before, to be done outside of the ED. It is a major trap for the unwary."

The guidelines also include an important caveat, that the physician who accepts that referral has to follow through on it, says Frew. "In the past, these referrals have gotten made, the patient presents to a physician's office who demands money to see them, and the patient goes untreated," he notes.

HCFA will continue to cite those cases as patient dumping. "The physician who accepted the referral is obligated to do follow-up care," says Frew. "You can't refer patients out without safeguards in place to make the physician responsible," he explains. "As is often the case, what looks like an opportunity to circumvent EMTALA is a major trap for the unwary."

The new regulations address the issue of when patients are considered stable for discharge. "It's consistent with the standard of care in clinical practice that it may take time to make the diagnosis of appendicitis," says Bedard. "This reduces the jeopardy of sending these patients home. You can do that if there is reasonable follow-up, whereas before we were required to keep the patient in the ED until the diagnosis is made, sometimes hours later."

The legal definition of stabilization under EMTALA is not necessarily the same as the medical definition of stabilization, notes Yeh. "Under the legal definition, if you are going to transfer somebody, the patient is considered unstable if there is a risk of material deterioration," she says. "But typically, a physician could be taking care of a very critical patient whose vital signs are constantly in flux. Still, you clearly need to transfer the patient, because you don't have the appropriate resources at your institution."

Even if physicians do everything they can to ensure the patient gets safely from one hospital to the other, the patient is still not legally stable. "In the provider's mind, they've done everything they can (for example, IV monitoring, medications, etc.) to minimize any deterioration arising during transport," says Yeh. "But that's not 'stable' under the law, because the patient still has a risk of deterioration. It's a very tough concept for providers to understand."

The legal definition of stabilization must be considered when transferring patients. "There is nothing that prevents you from transferring an unstable patient. You just have to fulfill the appropriate transfer requirements," says Yeh. "And it's not good enough to say the benefits outweigh the risks. You have to outline the specific benefits."

The examining physician is the one who determines whether the patient is stable. "They did include the word 'usually' to qualify that, but it's a definite improvement from the previous language," Bedard says. "This way, you don't run into the situation where an HMO gatekeeper says, 'From your description, I think the patient is stable, so send them home and we'll see them tomorrow." The HMO physician does have the option of coming in and examining the patient themselves, but they cannot make that decision over the phone, he explains.

Peer review is recommended when medical judgment is involved. "ACEP wanted it to be mandated that if a violation involved a question of medical judgment, HCFA had to get peer review," Bedard says. "The revised guidelines made it a recommendation but not a requirement. But it does say if they do get a peer review, they should try and have someone in the same specialty-an ED physician as opposed to a cardiologist."

90 days notice can be given for administrative violations. Previously, any EMTALA violation called for a 23-day notice to complete a corrective plan, regardless of whether there was immediate danger to patients. "Now, there is a recognition that not every EMTALA violation mandates a 23-day termination process-that there are times when a 90-day review process is acceptable," says Yeh.

Previously, some hospitals were given 23 days notice because they failed to send a copy of the patient's medical record, says Bedard. "If it's a matter of clinical decision making, then 23 days is appropriate, but the new guidelines allow for 90 days notice if it's simply administrative," he explains.

On-campus sites must have the same provider billing number as the hospital. HCFA added language that allows hospitals to complete or conduct the MSE outside the ED only if the patient is sent to a hospital-owned facility on the hospital's physical campus and is operated under the hospital's provider number.

This is problematic, says Bedard. "Routinely we'll send patients to outpatient offices for procedures such as minor tendon repairs," he notes. "It's a step backward to say you can only transfer a patient if the clinic has the same provider billing number."

The new language will have unintended consequences, Bedard explains. "What this does is potentially extend EMTALA to the third of the ambulatory care centers that are owned by hospitals," he says. "You can have a hospital-owned occupational medical center staffed by independent contractors, which will now come under EMTALA. This is extending the requirements in a way that was never intended."

If a group of pediatricians staff a clinic in the hospital with their own provider billing number, it will fall under EMTALA, says Bedard. "Physicians who operate as independent contractors are not hospital employees, so they will have a different provider number," he explains. "Under the new guidelines, an ED physician would have to fulfill all the requirements of an 'appropriate transfer' to send a patient across the hall to that pediatric clinic."

Hospital-owned EMS plans will find it easier to comply with EMTALA. "Previously, if ground transportation took a patient to the hospital helipad so the helicopter could bring the patient to a Level 1 trauma center, the hospital would have been required to do a full MSE and stabilization beforehand, because they were using the hospital helipad," notes Yeh.

Under the new guidelines, since the EMS protocols state that patients should be transported as quickly as possible, the hospital will generally be deemed compliant, says Yeh. "They are using the helipad as a means to meet the helicopter, and the hospital is following regionally approved EMS protocols. Therefore, they are not required to do the full MSE and stabilization," she explains.

Hospitals' EMS plans need to be community-based, stresses Frew. "If you put together a community EMS plan and patient choice is part of that plan, you might get around the necessity of signing a refusal in the field," he says. "All players must be involved, not just the hospital. It must include the dispatchers, police, and fire department."

EDs are in denial

Even after many hospitals have been issued citations, many are still violating EMTALA, says Frew. "There is a general sense of denial. The usual reaction is that interpretation can't be right because it doesn't make good business sense," he explains. "People don't realize that if something makes good business sense, it is probably illegal under EMTALA or Medicaid fraud and abuse."

There are still commonly seen areas of citation, says Frew. "There are still preauthorization denials that shouldn't have ever been happening but definitely cannot be happening now," he notes. "Also, we continue to see citations for on-call physicians refusing to come in."

Another hot spot is inadequate mental health screenings. "Almost every hospital I've seen in the Midwest that has been cited by HCFA has had several citations for this," says Frew. "Usually, at least one is a drug overdose or suicide gesture that was considered minor, and the patient didn't get an adequate work-up and was discharged."

Many medical staff and administrators still don't understand the obligations of EMTALA, says Bedard (see guest column supplement inserted in this issue). "There is still a lot of confusion about how to comply," he stresses.

Some hospitals believe they are in compliance but don't understand the depth of the legislation, says Frew. "Others follow their HMO rules because they think they're supposed to and don't realize that federal law supersedes them," he reports. "So, they follow their state Medicare procedures and get nailed for a violation."

Others know the law but willfully violate it, says Frew. "For financial reasons, some administrators choose to interpret it differently, figuring they will make enough money to make that worthwhile, even if they do get cited at some point," he explains.

But that assumption is dangerous, says Frew. "An EMTALA violation has potentially devastating financial effects," he emphasizes. "To give just one example, a hospital in Arizona ended up getting suspended from Medicare from November to June, due to EMTALA and other Medicare violations. According to inside sources, it cost them over $30 million out of their cash reserves."

Many areas are still unclear

One thing is clear: EMTALA is here to stay. "Even if the statute itself were to be revised, chances are it would be made even more stringent," says Frew. "In this climate of concern about patient protection, it would be almost impossible to get EMTALA amended, except to make it even tougher," he predicts. "No legislator would loosen patient protections that already exist."

The EMTALA Task Force, which has contributed input on a regular basis during the two-year process, is not scheduled to meet again. "It's not clear if they will reconstitute the task force; however, it's anticipated that there will be some mechanisms to continue the dialogue," says Yeh. "We hope that the discussion will continue on an ongoing, informal basis."

Still, the new guidelines won't be the last chapter in the book on EMTALA. "This isn't the end of the issue," says Frew. "My understanding is that HCFA will be sending out clarification letters defining issues such as the difference between a patient being stable, as opposed to stable for transport."

The more clarifications that are added to the site review guidelines, the more likely EMTALA will be applied uniformly, says Frew. "But the fact remains that just like traffic cops, HCFA inspectors can be subjective," he notes. "They all have prosecutorial discretion. They may choose to nail one person for an offense and let another by because they have a higher level of confidence in that institution."

ED managers need to be familiar with the actual EMTALA regulations in addition to the new guidelines, urges Yeh. "The guidelines do not change the law. They are just how HCFA will choose to interpret the statute," she says. "Ultimately, the key to compliance is really to assure that patients, whether in the ED or elsewhere, are treated in a nondiscriminatory fashion."

Here are some areas that may be addressed:

Transfer from a hospital after being admitted. "The guidelines do not address the scenario of a patient being admitted to a hospital and transferred to another facility days or weeks later," Bedard notes.

One patient who was transferred after being admitted has pressed an EMTALA investigation that will be the first to go to the Supreme Court, Bedard reports. "This is an important issue," he says. "The day the patient was transferred to a rehab hospital, she required admission to another acute care hospital. She went from acute care to extended care, to another acute care, claiming the first hospital should have kept her there."

The particular case hinges on whether the violation occurred because of monetary gain, says Frew. "If they confine it to the issues of the case, it won't affect the general climate of EMTALA," he explains. "But it will be the court's first chance to comment on the law at all, which will be interesting."

No discussion of finances. "To be completely safe, you can't have any financial discussion whatsoever with a patient," says Bedard. "If an HMO patient came in and said, 'My HMO won't do a back X-ray but I want one, how much will it cost me?,' you can't tell them. The attitude that you can't tell the patient what the cost will be, or imply they won't have any responsibility for payment is absurd."

The policy of never discussing finances violates consumer rights, says Bedard. "I don't think there is any service in this society where you don't have a right to ask for the cost," he argues. "I call this the HCFA gag rule."

Signage issues. The guidelines do not address what sign, if any, is permissible to post in the ED regarding patient responsibility for payment. "They can charge you with coercion if the patient leaves because you told them the bill would be expensive," says Bedard. "That could include posting a sign that says if insurance doesn't pay, we'll send you the bill."

More than half of the hospitals in the country have similar signs posted, he notes. "They could be interpreted as a form of coercion," says Bedard. "If that's the case, HCFA has an obligation to notify two-third of the hospitals in the country that they are in violation of the law."

Dual staffing. There is a trend toward MCOs placing their own physicians in a hospital's ED but only to provide treatment for patients who are plan members. In Denver, Cleveland, and North Carolina, Kaiser Permanente has closed its own facilities and signed a contract with a non-Kaiser facility for ED physicians to selectively see the HMO's patients, reports Bedard. "Kaiser is aggressively moving forward with this option in California," he says. "This raises a tremendous number of issues with EMTALA."

The California chapter of ACEP has requested a ruling from HCFA on the legality of this arrangement, Bedard reports. "We will be seeing this situation more and more in this managed care environment," he says. "HMOs want to put their own physicians in the ED to see their own patients. But if you try and segregate them out, we think that violates EMTALA."

Psychiatric patients. "There needs to be a lot more education about psychiatric patients, because there continues to be a lot of confusion and variation in standards of practice," says Yeh. "People tend to think that a psychiatric screening exam is not required. But it's very clear that these patients must have a full screening exam, both medical and psychiatric."

Editor's Note: The EMTALA statute, regulations, and site review guidelines can be accessed at the following Web site: http://www.medlaw.com