How you can comply with EMTALA’s new demands

Hospitals should view the Health and Human Services’ Office of Inspector General's (OIG) Special Advisory Bulletin on the Emergency Medical Treatment and Active Labor Act (EMTALA) as an opportunity to clarify their rights and responsibilities, says John Steiner, chief compliance officer at the Cleveland Clinic Foundation.

"These kinds of investigations can get pretty volatile," warns Steiner, who was instrumental in the negotiation of the EMTALA statute as a former counsel at the Chicago-based American Medical Association. Complaints can be easy to trigger, and the Health Care Financing Administration’s (HCFA) regional offices have a duty to follow up every call that appears credible, he notes. "Pretty soon, you're into it, and it chews up a lot of time and effort if people are not at least generally aware how to respond."

Steiner says that, from a pure, due-diligence standpoint, hospitals should use the document to perform a side-by-side comparison with HCFA's State Operations Manual. A hospital committee or workgroup can accomplish that, then decide if they want to change anything in their policies and procedures, he says.

At the Philadelphia-based Health Care Compliance Association's recent conference in Chicago, Steiner highlighted several areas in the HCFA manual that hospitals should closely scruntinize. Because it took two years of negotiation with HCFA to reach consensus on these recommendations, the language is very important, he says.

"This is the bible to take to your personnel in your emergency department and make sure they understand these procedural steps," Steiner emphasizes. Here are the critical areas in the State Operations Manual:

- Review of Investigation. "One thing to bear in mind is that the statute is very broad, so that a complaint investigation often escalates very quickly," warns Steiner. Moreover, given the way the system is set up, a single incident is often likely to trigger additional incidents.

Hospitals that have the ability to identify and address problems will be in a much stronger position with surveyors, says Steiner. He notes that the manual uses a six-month time frame to determine whether the hospital has satisfied federal regulations. "That is an important time clock."

He says HCFA surveyors will look at a large body of data, including central logs and medical records going back six to 12 months. "They start to get a snapshot of your facility, even though they are there only to investigate one complaint," he adds. "That's why your ability to scrub it yourself and have consistent and current policies is vitally important."

- Procedures for Termination. Hospitals should become educated on the distinction between situations that pose an immediate and serious threat to a patient's health or safety and those that don't, says Steiner. "Bear in mind that before this was written, they could come in and just take the position that your failure to comply because of a complaint meant you pose an imminent threat," he adds. "It was a very strong presumption to overcome, and this gives more procedural due process and protection."

According to Steiner, hospitals that have not been through the EMTALA process must also understand how rapidly it unfolds. The fast track is a 23-day process, but he says hospitals should seek the 90-day process, which allows more time.

Steiner notes that the manual includes new language that says hospitals may avoid termination action and notice to the public either by providing credible evidence of correction or by successfully showing that the deficiencies did not exist.

"That language was not there before, which made it a poker game about how you were doing in the eyes of HCFA," he says. "This gives you more opportunity to present where you are going and how you are going to get there, and it is codified and more stringent on the part of reviewing agencies."

The problem with EMTALA is that you never really close the door, warns Steiner. "If you are going to work through this on a fast-track basis, you are kind of in a Chinese fire drill," he says.

Hospitals often rush to put a corrective action plan in place to stop the government from publishing a notice that a hospital will be pulled out of the Medicare program for violating EMTALA.

"What happens is that you rush to get it done and everybody moves away from the issue," warns Steiner. HCFA's initial investigation is only the first bite at the apple, he explains. "They work hand-in-glove with the Office of Inspector General, so you may consider something closed and later receive a letter from the OIG."