The Federal Government Blocks South Carolina Hospitals from Posting ‘Pain Management Signs’ in their Emergency Departments
By Robert A. Bitterman, MD, JD, FACEP, President & CEO, Bitterman Health Law Consulting Group, Inc., Harbor Springs, Michigan Contributing Editor
All across the country, states, hospital associations, communities, and emergency departments (EDs) are attempting to deal with the growing incidence of prescription pain medication abuse, overdoses, and deaths.1 Opioid pain medications now kill more Americans than cocaine and heroin combined, and over the past five years, there have been more drug-induced deaths than motor vehicle accident deaths.2
Mayor Michael Bloomberg and the city of New York just announced to much fanfare new opiate prescription limits on the city’s public emergency departments.3,4 The U.S. Food and Drug Administration has also recently moved to tighten controls on narcotics, and almost all states have prescription drug-monitoring database programs in place or in various phases of development and implementation.5
As part of their opioid prescription initiatives, states such as Washington, Oregon, Colorado, and Ohio developed and displayed posters in their emergency departments to “educate” patients regarding the ED’s restrictions concerning opioid administration in the ED or in providing pain prescriptions via the emergency physicians. In Washington, which has been a leader in addressing prescription drug issues, the state chapter of The American College of Emergency Physicians (ACEP) believes strongly that the posters have been instrumental in reducing prescription opioid overdoses over the past three years.6
In South Carolina, however, the state hospital association (SCHA) sought prior approval of its proposed “Prescribing Pain Medication in the Emergency Department” signage from the Atlanta Regional Office of The Centers for Medicare and Medicaid Services (CMS) out of concern that the sign could be viewed as violation of federal law, The Emergency Medical Treatment and Labor Act, EMTALA. (See Table 1.)
Table 1: The Proposed ED “Pain Management Sign” Submitted by the SCHA to CMS7
Prescribing Pain Medication in the ED
Our emergency department staff understands that pain relief is important when one is hurt or needs emergency care. However, providing pain relief is often a complex issue, especially when pain is a chronic or recurrent process. Mistakes or misuses of pain medication can cause serious health problems and even death. Our emergency department will only provide pain relief options that are safe and appropriate.
The primary role of the Emergency Medicine provider is to look for and treat an emergency medical condition. We will use our best medical judgment when treating pain, following all legal and ethical guidelines.
For your safety, we do not:
Opinion of CMS
CMS responded first by citing the statutory definition of an emergency medical condition (EMC) under EMTALA,7 implying that “severe pain” is an emergency as defined by the law:
“The term ‘emergency medical condition’ means ... a medical condition manifesting itself by acute symptoms of sufficient severity (including severe pain) ... etc.”8
However, “severe pain” alone is not sufficient to be an EMC.9 CMS left off the last part of the EMTALA definition of an EMC, which states, “[severe pain] such that the absence of immediate medical attention” could reasonably be expected to result in:
(i) placing the health of the individual (or, with respect to a pregnant woman, the health of the woman or her unborn child) in serious jeopardy,
(ii) serious impairment to bodily functions, or
(iii) serious dysfunction of any bodily organ or part.10
For example, the chronic back pain patient with “severe pain” that’s a 12 out of a possible 10 does not have an EMC if he does not need immediate medical attention for an aortic aneurysm that’s ruptured, an epidural abscess, a herniated disc that’s producing serious neurological loss, or some other true EMC. No matter how “severe” the back pain, if it is not a manifestation of serious disease, the patient does not have an EMC as defined by EMTALA.11 But the only way to know if the chronic back pain patient has an EMC is for the ED to put the patient through its usual medical screening examination (MSE) process; that’s the whole purpose of EMTALA’s mandated MSE — to determine if the patient’s presenting medical complaint, in this case back pain, is an EMC.
Therefore, all patients requesting pain medications for acute exacerbations of chronic pain syndromes, such as herniated disks, fibromyalgia, trigeminal neuralgia, or migraine headaches, must be examined — provided a medical screening exam — to determine if their pain is indicative of an EMC. Furthermore, the MSE must be provided no matter how well the “frequent flyer” patient is known to the ED, and even if the patient had just left the ED a few hours ago.
CMS then noted that hospitals may not “unduly discourage” individuals from remaining in the ED to receive an MSE and stabilizing treatment for EMCs, as is their federal right under EMTALA.7 Furthermore, CMS stated that “patients may leave the ED of their own free will, but they should not leave based on a ‘suggestion’ by the hospital or through coercion.”7
Consequently, the Atlanta Regional Office of CMS opined that the language proposed by the SCHA for its pain management sign, and any similar language the hospital might choose to post in patient waiting rooms or treatment rooms, “might be considered to be coercive or intimidating to patients who present to the ED with painful medical conditions, thereby violating both the language and the intent of the EMTALA statute and regulations.” CMS added that “Our concern is that some patients with legitimate medical needs and legitimate need for pain control would be unduly coerced to leave the ED before receiving an appropriate medical screening exam.”7
CMS went on to say that the issues raised in the proposed sign are important and appropriate points for discussion between the patient and the emergency physician, but “they should be discussed in the context of an appropriate medical screening exam rather than posted in the ED before patients are provided an appropriate medical screening exam. Blanket statements or protocols should not supersede professional medical judgment in individual cases.”7
The response from the chief medical officer of the Atlanta regional office is consistent with CMS’ long-standing position that any action or sign that discourages a patient from completing the medical screening process is a violation of EMTALA. There is no question that the intent of these signs, at least in part, and particularly for the earlier drafts that include the South Carolina proposal, is to encourage a select patient population to leave the ED.
It is a near certainty that CMS would consider the requirement that patients produce a photo ID prior to receiving narcotics in the ED or via a prescription to “unduly discourage” particular individuals, such as undocumented immigrants, other non-citizens, or just anyone without a photo ID — all of whom have a “federal right” to an MSE under EMTALA — from staying in the ED for the medical screening.
Query to a State Prescription Database or ‘Checking the Patient’s Drug History’
During triage, can the triage nurse or a hospital case manager inform patients that they have X number of ED visits this year and they are being monitored by a statewide ED visit management system? Can the sign posted in the ED state that “before prescribing a narcotic, we will check the state database that tracks your narcotic or other controlled substance prescriptions,” or “ask that you give a urine sample before prescribing narcotic pain medication?” (These statements are present, for example, on Ohio’s ED pain management sign.) Of course not, and this may surprise many emergency departments! Only after the MSE has been completed and no emergency identified can this type of information be given to the patient. Such language will certainly “unduly discourage” a patient from staying in the ED to receive the MSE.12 Obviously, the hospital’s intent in providing this information, at least in part, is to discourage the patient from being seen in the ED in the first place. Moreover, from a medical or patient safety perspective, how can the ED be sure that the patient doesn’t have a real EMC at this moment in time without conducting a proper medical examination? Even individuals who cry wolf experience a life-threatening event eventually.
Similarly, language on the sign such as “We may ask you about a history of pain medication misuse or substance abuse before prescribing any pain medication” can be viewed as stigmatizing and discouraging patients from staying for the MSE if they know they are going to be grilled about their drug habits. CMS considers patients with substance abuse problems to be a “protected class” under EMTALA (i.e., more likely to be discriminated against by the ED). Note that it’s perfectly appropriate to conduct this type of questioning, but it should be done after the MSE, not before.
Contacting the Patient’s Physician
Can a chronic pain patient be told in advance of the MSE by the emergency department that their regular doctor has left instructions with the ED not to use opioids? Can the posted ED sign state, “We will not prescribe narcotic pain medicine if we cannot talk directly with your primary care provider?” (For example, this is what Ohio’s ED pain management sign says.) No, it cannot, for the same reasons noted above.
Drafting an EMTALA-compliant Pain Management Sign for the ED
If a hospital wants to post pain signs in its ED, the language of the sign must be crafted in a manner that does not appear to imply that services will be denied, that the patient’s pain may not be treated, or in any way intimidate or “discourage” patients with painful conditions from staying in the ED to receive their “federal right” to an MSE. The language should be couched in terms of patient safety, and when read in total confers the impression that the ED is indeed acting in the patient’s best interest.
A sign believed to be compliant with EMTALA (in the author’s opinion) is provided in Table 2.
Table 2: An EMTALA-compliant “Prescribing Pain Medication in the ED” Sign13
Our emergency department staff understands that pain relief is important when someone is hurt or needs emergency care. However, providing pain relief is often complex. Mistakes or misuse of pain medication can cause serious health problems and are a major cause of accidental death. Our emergency department strives to provide pain relief options that are safe and appropriate.
Our main job is to look for and treat an emergency medical condition. We use our best judgment when treating pain, and follow all legal and ethical guidelines.
For your safety, we:
However, it may be hard to convince CMS that there is no intent to discourage, at least to some degree, particular patients from seeking examination or treatment in the ED when posting such signs.
Even if a posted sign would survive EMTALA scrutiny, the prescription drug issues would be better addressed to the general populace through community outreach, web sites, and in other educational literature, as well as with the individual patient during the interaction with the physician or on their way out of the ED, instead of potentially deprecating language found on the walls in the ED entry areas.
The wisest course is to create, implement, and follow sound department-wide drug-use policies, rather than post signs. For example, some hospitals years ago quietly adopted policies whereby the emergency physicians would never write prescriptions for methadone or replace lost or stolen pain prescriptions. It only took a few weeks for the methadone seekers to cease coming entirely, and the “lost prescription” crowd nearly disappeared, too. The grapevine will disseminate the ED’s drug policies fast enough.
Another advantage of having a written departmental policy is that the emergency physician has something to refer to as coming from “a higher power,” stating that “no opioids will be prescribed for x, y, or z conditions,” which allows the physician to demonstrate that he or she is not being arbitrary or discriminatory to that individual patient.
Dealing with chronic pain patients or drug-seeking patients is always difficult. To help hospital emergency departments deal with the issue, a number of states convened emergency provider workgroups to establish opioid management protocols for the emergency department. For example, see the Washington State ACEP Chapter/Washington State Department of Health opioid prescribing guidelines, available at www.washingtonacep.org/painmedication.html.
1. For example, see the Washington State ACEP Chapter/Washington State Department of Health opioid prescribing guidelines at www.washingtonacep.org/painmedication.html.
2. U.S. Department of Health and Human Services, Substance Abuse and Mental Health Services Administration, Center for Behavioral Health Statistics and Quality. (2012). Results of the 2011 National Survey on Drug Use and Health: Summary of National Findings. HHS Publication No. (SMA) 12-4713. Rockville, MD.
3. Huffman A. Controlling opioid abuse in the emergency department: Legitimate public policy or ‘legislative medicine’? Ann Emerg Med. 2013;61:13A-15A.
4. The New York City Department of Health and Mental Hygiene issued guidelines January 2013 for opioid analgesic prescribing to patients discharged from the ED. (http://on.nyc.gov/YZVuhf)
5. According to the White House National Drug Control Policy web site: http://www.whitehouse.gov/ondcp/2013-national-drug-control-strategy.
6. Personal communication with Washington ACEP Chapter leaders.
7. February 6, 2013 letter from Dr. Richard E. Wild, Chief Medical Officer for the CMS Atlanta Regional Office, to Diane Paschal, Director of Corporate Compliance, South Carolina Hospital Association. (“CMS Letter”)
8. CMS Letter, citing 42 USC 1395dd(e)(1).
9. Bitterman RA. Is ‘severe pain’ an emergency medical condition under EMTALA? ACEP News 2013;32(4):17-18.
10. 42 USC 1395dd(e); 42 CFR §489.24(b). Emphasis added.
11. The courts have interpreted the “serious bad things happening to patient” phrasing in EMTALA to mean “imminent danger of death or serious disability” or “imminent danger of death or a worsening condition that could be life threatening.” E.g., Thornton v SW Detroit Hospital, 895 F2d 1131 (6th Cir 1990), or Camp v Harris Methodist Fort Worth Hospital, 983 SW2d 876 (Tex App. 1998).
12. 42 CFR §489.24(d)(4)(iv); CMS Interpretive Guidelines §489.24(d)(4)(iv).
13. With assistance, credit, and thanks to the Washington Chapter of ACEP.