Summary of EMTALA Task Force Recommendations

The following is an abbreviated list of terms and clarifications that the HCFA EMTALA Task Force has recommended; it has been compiled from the drafts submitted by each of the three subgroups.

Each of the principles has been agreed upon by representatives from the American Association of Health Plans, the American Association of Retired Persons, the American College of Emergency Physicians, the American Hospital Association, the American Medical Association and Public Citizen, with guidance from HCFA.

From the Definitional Issues Group

General Principles

The processes of diagnostic evaluation and clinical management of the emergency medical condition and the determination of when the patient is stabilized shall not be discriminatory.

Section 1867 was not intended to create a new federal medical malpractice cause of action.

The clinical outcome of an individual’s condition is not a basis for determining whether an appropriate screening was provided or whether a person that was transferred was stabilized.

Emergency department providers are encouraged to involve the patient’s primary care provider, where appropriate and when available, in decisions about medical care.

If there is a disagreement between the treating physician attending to the patient in the ED and an off-site physician as to whether an emergency medical condition exists or whether a patient has been stabilized, the medical judgment of the treating physician takes precedence over the judgment of the off-site physician.

In determining the correct enforcement of Section 1867, it is important to consider whether a provider believed he/she was acting in the patient’s best interest. In examining a decision based on the exercise of clinical judgment, the relevant information is what was known by, or reasonably available to, the clinician at the time the decision was made, and which would generally be relied on in making that type of decision.

Appropriate Medical Screening Examination

A medical screening examination (MSE) is the process required to reach, with reasonable clinical confidence, the point at which it can be determined whether a medical emergency does or does not exist. So long as a hospital applies, in a nondiscriminatory manner, a screening process that is reasonably calculated to determine whether an emergency medical condition exists, it has met its EMTALA obligations.

Depending on a patient’s presenting symptoms, the MSE represents a spectrum ranging from a simple process involving only a brief history and physical examination to a complex process that also involves performing ancillary studies and procedures such as (but not limited to) lumbar punctures, clinical laboratory tests, CT scans, and/or diagnostic tests and procedures.

The clinical outcome of an individual’s condition is not a basis for determining whether a screening was appropriate.

Triage is not equivalent to an MSE. Triage merely determines the "order" in which patients will be seen, not the presence or absence of an emergency medical condition.

A screening process is not the equivalent of a clinical practice guideline.

"To Stabilize"

When the determination that a person is stabilized is based on the type of information generally considered for persons similarly situated, and the method used to reach a decision was the same as that used for persons similarly situated, Section 1867 of the Social Security Act has been complied with:

1. A patient will be deemed stabilized if the treating physician attending to the patient in the ED/hospital has determined within reasonable clinical confidence that the emergency medical condition has resolved.

2. For patients whose emergency medical condition has not been resolved, the determination of whether they have been stabilized may occur in one of the following two circumstances:

a. for purposes of transferring a patient from one facility to a second facility, and

b. for purposes of discharging a patient (other than for the purpose of transfer from one facility to another facility.

An emergency medical condition shall be deemed to be stabilized if a patient is transferred from one facility to a second facility and the treating physician attending to the patient in the ED has determined within reasonable clinical confidence that the patent is expected to leave the hospital and be received at a second facility with no material deterioration in his or her condition; the treating physician reasonably believes the receiving facility has the capability to manage the patient’s medical condition and any reasonably foreseeable complication of that condition.

• If there is disagreement between the treating physician and off-site physician as to whether a patient has been stabilized, the medical judgment of the treating physician takes precedence over the judgment of the off-site physician.

• If a physician is not physically present at the time of transfer, then qualified personnel (as determined by hospital bylaws) in consultation with a physician can determine if a patient is stabilized.

• Stabilization does not require final resolution of the emergency medical condition.

• The processes of diagnostic evaluation and clinical management of the emergency medical condition and the determination of when the patient is stabilized shall not be discriminatory

• For psychiatric conditions, the patient is considered to be stabilized when he/she is protected and prevented from injuring himself/herself or others (e.g., the patient has been adequately restrained, either chemically or physically).

• The failure of a receiving facility to provide the care it maintained it could provide to the patient in question when the transfer was arranged shall not e construed to mean that the failure or the patient’s condition as a result of the failure resulted from the transfer.

An emergency medical condition shall be deemed to be stabilized for purposes of discharging a patient (other than for the purpose of transfer from one facility to another facility) when, within reasonable clinical confidence, it is determined that the patient has reached the point where their further care, including diagnostic work-up and/or treatment, could be reasonably performed on an outpatient basis or a later, scheduled inpatient basis, providing the patient is given a reasonable plan for appropriate follow-up care and discharge instructions.

• Stabilization does not require final resolution of the emergency medical condition.

• For psychiatric conditions, the patient is considered to be stable when he/she is no longer considered to be a threat to him/herself or to others.

From the Interface with Managed Care Group

Consensus: It is inappropriate for a hospital to request or a health plan to require prior authorization before the patient has received a medical screening exam and an emergency medical condition has been ruled out or stabilized. Once an emergency medical condition has been ruled out or stabilized, prior authorization for further services can be sought.

Consensus: Statute 1867 places the onus of responsibility in ruling out and/or stabilizing an emergency medical condition and the possible ensuing liability on the examining physician in the hospital/ED. The decision as to whether an emergency medical condition exists or has been stabilized for statute 1867 and for reimbursement purposes therefore should rest with the examining physician in the hospital/ED.

Consensus: Patients often present to EDs with symptoms that prospectively could mean the presence of an emergency medical condition but do not subsequently turn out to be emergencies. At a minimum, health plans should reimburse for screening for conditions that, on presentation, could indicated the existence of an emergency medical condition.

Consensus: If a patient is referred to an ED by his or her primary care physician or other representative acting on behalf of his/her health plan, the claim for the MSE and treatment up to the point of stabilization of the emergency medical condition should be paid.

From the Sub-Group on Enforcement Process and Procedures

Section 1867 does not apply to hospital-owned "satellite sites" that do not have an organized emergency service.

Before HCFA determines whether a Section 1867 violation occurred, and before HCFA sends a Notice of Termination (either 23-day or 90-day notice), the following should occur:

• HCFA must share all data regarding the complaint and investigation with providers being investigated.

• HCFA determines if the alleged violation is an "administrative violation" or a "medical care" violation.

• HCFA and the Hospital decide whether a peer review organization (PRO) review is indicated.

After HCFA determines a hospital is not in compliance with EMTALA:

• HCFA decides whether to issue a 23-day or 90-day termination notice

• All administrative violations would proceed via a 90-day notice of termination.

• Medical care violations. Immediate PRO medical opinion would be obtained before HCFA determines a hospital’s current practice truly represents real and immediate threats to the health and safety of patients.

• Medical care issues would go down a 23-day track if HCFA and the PRO determined a current immediate threat existed. Medical issues would go down a 90-day track if no immediate threat was found.