EMTALA clarifications help, but more are needed

Medical screening now process, not event

[Editor’s note: Next month, Hospital Access Management will examine why EMTALA enforcement remains subjective, and look at how it applies to various care settings. The EMTALA statute, regulations, and site review guidelines can be accessed on the World Wide Web: http://www.medlaw.com.]

The long-awaited revised guidelines for enforcement of the Emergency Medical Treatment and Active Labor Act (EMTALA) have been published. They offer some help to access managers and hospitals struggling to comply with the law, but sources say more clarification is still needed.

"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 the Health Care Financing Administration’s (HCFA) 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 that became effective in July:

1. The medical screening exam (MSE) is a process, not an event.

This guideline clarifies 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 (CA) campuses, and immediate past president of ACEP.

"The screening exam is not necessarily a level one or two code. It may be a comprehensive evaluation or level five code," adds Bedard.

There is 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."

New definition affects pay

The new definition of an MSE is likely to affect the financial reimbursement an emergency department (ED) receives, says Yeh. "Because the definition covers such a broad range of services, it’s important that any discussions with third party payers 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."

2. Prior authorization is not allowed.

This guideline clearly states that prior authorization is not permitted for 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, it is 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 Stephen 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 on an 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."

Accept referral, must treat

The guidelines also include an important caveat: 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."

The regulations now 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.

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."

3. 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 physicians do have the option of coming in and examining the patient themselves, but they cannot make that decision over the phone, he explains.

4. 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 [that] 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."

5. Ninety days’ notice can be given for administrative violations.

Previously, any EMTALA violation called for a 23-day notice to complete a corrective plan, 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 says.

6. 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. It’s a step backward to say you can only transfer a patient if the clinic has the same provider billing number."

Regs extended beyond intent

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 that will now come under EMTALA. This is extending the requirements in a way that was never intended."

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 one 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, EMS protocol states 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."