COBRA decisions put hospital staff on the spot

The COBRA law prohibiting unsafe transfers and emergency department treatment refusals is a reasonable law that seeks to protect patients, says Monica C. Berry, RN, JD, LLM, a risk management consultant with Illinois Provider Trust in Naperville.

But that does not mean COBRA is easy to abide by. The law may be well-intentioned, and so may your staff, but it still is easy to be bitten by COBRA (the Consolidated Omnibus Budget Reconciliation Act). Broad statutory language and confusing judicial interpretations mean health care providers often must be legal experts to make the right decision. Nearly half of COBRA violations involve inappropriate transfers, with another 30% attributable to failure to stabilize and 20% due to failure to screen.

The screening exam is one of the trickiest COBRA requirements, Berry says. Guidelines from the Health Care Financing Administration (HCFA) state that people presenting to the emergency department must be provided "an appropriate medical screening exam beyond initial triage." HCFA goes on to say that "a screening exam is not an isolated event, it is an ongoing process. The record must reflect ongoing monitoring in accordance with the individual’s needs and must continue until the patient is stabilized or transferred."

That means that a cursory examination may not satisfy COBRA requirements, Berry cautions. Also, the patient may thwart your efforts to provide a proper, ongoing examination. If the patient feels better and wants to leave, you may be obligated to at least encourage the patient to stay. When a patient refuses to stay for further examination, have the patient sign a release form acknowledging that he or she was offered more attention.

Advice offered for medical screenings

Berry offers this advice for lowering the risk of a COBRA violation with screening examinations:

1. Recognize that the triage examination and the medical screening examination are different. The triage examination does not count for complying with COBRA.

2. Conduct the medical screening examination before asking about insurance.

3. The screening examination must take place at your hospital, not elsewhere.

4. Be sure to follow your hospital’s practice protocols with the patient, unless there is a good reason not to. Follow a standard policy for how to screen patients.

5. Document the time any medical interventions take place.

6. Do not let misperceptions about alcohol use cloud the diagnosis. Even if the person has been drinking heavily, he still might need emergency attention for problems not related to the alcohol.

7. Determine if your hospital bylaws identify nurses as "qualified medical personnel" for the purpose of conducting a medical screening examination. If so, identify when the bylaws require a physician to do the examination.

8. Disregard managed care authorization when conducting the medical screening examination. COBRA requires the examination regardless of authorization from the insurer. Perform the examination before contacting the insurer for authorization for further care.

9. If the patient refuses examination or treatment, COBRA requires that you document the risks and benefits of the care, reasons for refusal, a description of the care refused, and the steps take to secure a written refusal.

Unstable patients can be transferred only with physician certification and written consent of the patient or his or her representative. A quandary sometimes arises for paramedics when a patient insists on being taken to a hospital other than the nearest one able to care for the injury. Berry says the paramedics should discuss those situations with hospital authorities. If the extra travel time will not harm the patient, the request can be granted.

Will scope of COBRA expand?

Berry predicts that more COBRA claims will arise from transfers from departments other than obstetrics and emergency. If a patient is transferred to another facility that can provide more appropriate and advanced surgical care, for instance, the patient can sue the original hospital for transferring her in an unstable condition. Note, however, that COBRA allows a patient to be "stable" while also being in "critical" condition. COBRA does not require that all patients be healthy before transfer.

Scenarios like that will require hospital staff to develop a more complete understanding of COBRA to avoid violations. Berry also sees potential trouble as managed care groups further encourage a reduction in the length of stay. At some point, she suspects, patients will use COBRA to allege that sending the patient home with home health services is an illegal transfer. (Editor’s note: Monica Berry, RN, JD, LLM, Director, Physicians Risk Management Program, Illinois Provider Trust, P.O. Box 3015, Naperville, IL 60566.)