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When an ED nurse failed to follow triage protocols and sent a child out to a private physician, there were tragic results.
The child was brought to the ED due to fever, lethargy, vomiting, and poor feeding. The child was given an initial triage but was sent to the doctor's office without the scope of assessment required by the Emergency Medical Treatment and Active Labor Act (EMTALA). This situation occurred because the ED was not able to obtain prior approval for the ED visit from the gatekeeper physician in the patient's Medicaid plan, according to Stephen Frew, JD, president of the Rockford-IL based Frew Consulting group, which specializes EMTALA compliance. "Several hours later, the child returned, dead from meningitis," he says.
The hospital was cited for failure to have proper policies and procedures in place and allowing a nurse to discharge a patient without being seen by a physician for a medical screening examination, Frew says. "In the subsequent suit, the hospital was named for EMTALA violations and lack of proper policies and procedures. The nurse and outside physician were named in malpractice counts," he adds. The confidential settlement was seven figures and resulted in dismissal of the case and all defendants, says Frew.
Trends show that there is a clear increase in enforcement of EMTALA over the past two years, warns Charlotte Yeh, MD, FACEP, medical director for Medicare Policy at the National Heritage Insurance Co. in Hingham, MA. "There have been 70 cases filed, with $2 million in penalties and settlements, which is more than 10 times the amount of penalties in the previous 10 years combined," she says. Clearly, the Health Care Financing Administration (HCFA) and Office of Inspector General mean business. "EMTALA remains a top priority, second only to fraud and abuse," she says.
You face stiff penalties under EMTALA, Yeh cautions. "Congress enacted a big stick to ensure compliance, and the penalties are indeed significant." A single violation can result in a fine of up to $50,000 per incident for hospitals with 100 or more beds. "HCFA can also exclude the hospitals from the Medicare program, which can be the death knell of a hospital."
EMTALA may be confusing and at times frustrating, but don’t forget the principle behind the law, urges Yeh. Before the law was passed, Yeh recalls being unable to treat a young woman who was bleeding. "The clerk told me You will not treat her; you will transfer her.’"
You should follow these general rules to steer clear of violations, according to Gloria Frank, JD, owner of EMTALA Solutions, an Ellicott City, MD-based consulting firm, and former lead enforcement official on EMTALA for HCFA:
1. Document all interactions with patients.
2. Try to get written refusals of care if the patient wants to leave without being seen or against medical advice.
3. If all else fails, do what’s best for the patient.
There are three basic requirements of EMTALA, according to Yeh:
1. When a patient presents to the ED (which is defined as coming to hospital property), you are required to provide a medical screening examination to determine the presence or absence of an emergency medical condition, regardless of the patient’s ability to pay.
Make sure that the patient’s care is consistent from the medical screening examination, all the way through to stabilization, says Yeh. "Never discriminate based on the patient’s ability to pay. If you are doing a financial screening before the medical screening examination, you are in trouble."
2. If an emergency condition is found, then the hospital is required to stabilize the patient within the capability of that facility.
A patient certainly has the right to refuse treatment, notes Yeh. "However, it’s really important that there is no intimation that elopement or refusal of treatment occurred because of the patient’s ability to pay." Yeh recommends documenting attempts to reach those patients to ask them to come in to be seen, and that the medical screening examination, stabilization, and treatment were offered, and the risks and benefits to leaving were explained.
3. The hospital may transfer the patient only when it is medically necessary or the patient requests. The medical necessity is defined as when a physician can certify that the benefits outweigh the risks.
All of those three key requirements have the same underpinning, emphasizes Yeh: Screening and stabilization cannot be delayed by any financial screening, and there can be no indication that there will be discrimination based on ability to pay. "The obligations of EMTALA will end only if there is no emergency medical condition or once the patient has been stabilized."