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[Editor’s note: This column is an ongoing series that will address reader questions about the Emergency Medical Treatment and Active Labor Act. If you have a question you’d like answered, contact Staci Bonner Kusterbeck, Editor, ED Management, 280 Nassau Road, Huntington, NY 11743. Telephone: (631) 425-9760. Fax: (631) 271-1603. E-mail: StaciBonner@aol.com.]
Q: An orthopedic surgeon has patients who wish to see him in his office come to the ED on days that he is here doing surgery. These patients may spend a significant time in the ED waiting to be seen and are being charged an ED discharge acuity rate to cover nursing time and procedures, even though they technically are not ED patients being cared for by the ED physician. Should these patients be medically screened for stability?
A: The question is whether there a request for examination and treatment, says Gloria Frank, JD, owner of EMTALA Solutions, an Ellicott City, MD-based consulting firm, and former lead enforcement official on EMTALA for the Baltimore, MD-based Health Care Financing Administration (HCFA). "Although one could make the argument that there is no request [because the patient is simply waiting to see the surgeon], I would screen," she advises.
There is the danger of patient being in worse shape than everyone thinks, says Frank. "They are waiting a long time in between surgeries," she adds. "HCFA is very draconian about these kinds of questions."
Q: Can a private physician have his physician’s assistant (PA) come to the ED, evaluate the patient, and make disposition without the physician seeing the patient?
A: Yes, as long as the emergency physician does not explicitly request the attending to see the patient in the ED, according to Robert A. Bitterman, MD, JD, FACEP, director of risk management and managed care for the department of emergency medicine at Carolinas Medical Center.
Bitterman gives the example of a routine admission for pneumonia: The PA can come to the ED, evaluate the patient, and arrange the admission without the attending seeing the patient that night — as long as the ED physician is comfortable with this arrangement, he explains. "However, if the emergency physician asks the attending to come to the ED, then the attending must come," Bitterman stresses.
Q: Are there any conditions under which a PA can do a medical screening in the ED under EMTALA?
A: Yes, and they routinely do so in most EDs in this country, "as long as they are acting within the scope of their state license under the direct supervision of the emergency physician," Bitterman cautions. PAs generally must act under the license of a physician and can’t act independently, says Bitterman. He notes that PAs can do medical screenings under any reasonable protocols within the scope of their licensure. Bitterman adds that all protocols should be reviewed by the PAs and the ED physicians to be sure they are comfortable for both parties and that they are carefully written to limit EMTALA or ordinary malpractice liability.
Q: If the medical screening in a facility is done primarily by the ED physician and a private PA who is a member of a specialty group, does that constitute a different level of care?
A: No, says Bitterman. "It falls to the emergency physician to decide if and when the attending specialist must appear in the ED," he notes.
Q: When the ED physician needs a specialty doctor for stabilization, can the private doctor send her PA?
A: Again, if the ED physician decides the attending specialist must appear in the ED, the specialist must come into the ED, says Bitterman. "If not, then the PA may come to arrange an admission or further inpatient care," he adds. In general, however, PAs won’t be much help in stabilizing patients with true emergency medical conditions, and the attending will need to appear, says Bitterman. "What is clear, though, is that it is the judgment call of the emergency physician that determines if and at what time the attending on-call physicians must respond to the ED," he stresses.
Q: What is the 250-yard rule, and what is the source of the definition?
A: HCFA published the 250-yard rule as part of the hospital outpatient PPS rule on April 7, 2000 (65 Fed Reg 18434, 18538), and it is codified in the definition of "campus" at 42 CFR 413.65(a)(2), says Frank. The new EMTALA rules became effective after the first day of a hospital cost reporting period beginning on or after Jan. 10, 2001, she notes.
Frank adds that "comes to the ED" means all outpatient departments and anywhere on the hospital campus (250-yard rule), according to HCFA. "The courts look at it differently," she says. "Some courts require actual presentment to the ED; other courts will apply the stabilization requirement only if the patient presents somewhere in the hospital other than the ED, such as the labor and delivery department."
For more information about EMTALA, contact:
• Robert A. Bitterman, MD, JD, FACEP, Department of Emergency Medicine, Carolinas Medical Center, P.O. Box 32861, Charlotte, NC 28232-2861. Telephone: (704) 355-5291. Fax: (704) 355-8356. E-mail: firstname.lastname@example.org.