EMTALA: How can you know what is enough and when you’ve gone too far?

EMTALA response teams might be necessary to ensure compliance

When you drive to work tomorrow, take a close look at what is near your health care facility. If there is a liquor store or an apartment building, you may have a lot to do if you want to avoid violating the Emergency Treatment and Active Labor Act (EMTALA).

The Centers for Medicaid and Medicare Services (CMS, formerly the Health Care Financing Administration) recently issued a set of clarifications intended to answer some nagging questions about how to comply with EMTALA, but sources tell Healthcare Risk Management that the clarification makes EMTALA as clear as mud. Of particular concern is the 250-yard rule, which requires hospitals to provide emergency care to anyone within 250 yards of the hospital’s campus.

Or does it?

The CMS clarification seems to weaken the rule, or at least suggest that risk managers have been overly cautious in their interpretation of it. The clarification asks whether a hospital must provide care whenever someone presents for emergency medical care anywhere within 250 yards of the hospital’s main building, even if the individual is in an area that is not hospital-owned and operated. The answer is "no," as EMTALA applies only when a person comes to the hospital campus itself. (See "A (gray) clarification of the 250-yard rule," for the complete clarification from CMS.)

At first glance, that seems like a concrete answer. But experts in EMTALA aren’t buying it. They say the CMS clarification does not apply to the situations most troublesome to hospitals and leaves many unanswered questions. The example used in the CMS clarification concerns a customer at a fast-food restaurant who collapses. The restaurant is within 250 yards of the hospital, but CMS says the hospital has no EMTALA obligation because the restaurant is not affiliated with the hospital or on its property.

But that example does not include anyone running to the hospital and asking for help, says John C. West, JD, MHA, DFASHRM, senior health care consultant with AIG Consulting in Atlanta.

"That’s really the key point," West says. "Nobody thinks we have to just magically know that the person collapsed and run down the street to help. But what if someone runs into the emergency department and says the person at the restaurant needs help? That’s the question everyone’s wondering about."

Indeed, that is the scenario that led to the 250-yard rule in the first place. On May 16, 1998, a 15-year-old boy was shot less than a block from Ravenswood Hospital Medical Center in Chicago. Following hospital policy, emergency department staff refused to go outside and help him. The boy’s friends and police officers pleaded with them for help, but they refused. Police eventually dragged him inside the hospital, but the boy soon died. CMS determined that the hospital violated EMTALA and fined it $40,000.

Soon after, CMS explained that EMTALA applied to people seeking help within 250 yards of the hospital. West says the recent clarifications are difficult to interpret, but he thinks CMS was trying to point out that the hospital must be notified before EMTALA kicks in.

"The clarifications really don’t help people interpret the rule, and I’d still say people have to play it safe and think of the 250 yards as a good guide," West says. "If someone is in need of care, and someone comes in asking for help like at Ravenswood, you need to provide care. That doesn’t mean you have to go a mile away, but do you have to go 250 yards? I still say yes."

Lots of crazy implications’

 Mark Kadzielski, JD, head of the West Coast health practice for the law firm of Fulbright & Jaworski in Los Angeles, agrees that the CMS clarification does not end concerns over the 250-yard rule. Like West, he says CMS clarified some of the more obvious situations — like the fast-food restaurant — without addressing the gray areas.

The clarification implies that EMTALA applies only to 250 yards from the main hospital building if that point still is on the hospital campus. But Kadzielski says that CMS originally implied that the 250 yards could well extend beyond hospital property and that the clarification does not actually address that discrepancy.

"Given this 250-yard rule and all its crazy implications, you absolutely have to play it safe," he says. "My advice would be that if a request is made for emergency service, the better part of valor is to go get that person. It’s better than trying to argue about these interpretations."

Know your limits

West and Kadzielski agree that there is no need to actually measure off 250 yards from your hospital property, but it is a good idea to have a general sense of what is within 250 yards of your hospital property. You might think in terms of streets or other landmarks instead of the precise distance, West says. But no matter where you draw the line, there will be some point at which you have to say, "That’s too far."

"What do you do when your staff walk out there and they see the person just beyond whatever boundary you’ve decided on?" West says. "I don’t think it was meant to be a hard-and-fast rule, so that if someone is 251 yards away, they don’t qualify for your attention. I think CMS will want to see that you made a reasonable, good-faith effort, and that’s going to require some judgment calls."

The area around your facility will make a big difference as to how much trouble this rule will be. If you are in a rural area with little or nothing within 250 yards of your campus, there may be little to worry about. But if you are in an urban area, you could have businesses and even residential buildings within that area.

What if there’s a bus stop or liquor store down the street near your hospital parking lot? Kadzielski asks. Are you responsible for the aftermath of a knife fight that breaks out in the parking lot of the liquor store? If someone comes and tells you there’s a victim lying there, the answer is yes, say both West and Kadzielski. But if no one notifies you that a person needs emergency care, there is no EMTALA obligation.

Here’s another twist: What if your security guards are on routine patrol of a hospital parking lot and see the knife fight at the liquor store? Nobody came to ask for help, but a representative of the hospital now knows that there is a person lying in a pool of blood just beyond the campus. Does that count as notification and start the EMTALA obligation?

"Yes," Kadzielski says. "Without the 250-yard rule, the guard is just a witness and can call 911. But with the rule, he should activate your plan for complying with the 250-yard rule."

EMTALA response teams

Experts agree that hospitals must have a system in place for responding to those EMTALA obligations. West and Kadzielski both suggest creating EMTALA response teams that can be notified and go out to get the patient. Though they suggest enacting a formal policy, the actual implementation doesn’t necessarily have to require increased staff or supplies, they say.

The hospital that prompted the whole debate has such a plan in place. Ravenswood’s policy requires hospital employees to call a special internal telephone number to report cases where they believe someone on or near the hospital campus needs immediate medical assistance. An emergency department nurse or physician will then determine how best to treat the person, and there is no prohibition against the staff going outside.

A Ravenswood spokeswoman declined to comment further on their plan because the hospital still is in litigation from the 1998 incident.

Tips on those gray areas within the 250-yard rule

The key to complying with the Emergency Treatment and Active Labor Act (EMTALA) 250-yard rule is to have a specific policy and to inservice staff on responding properly to these situations. Here are some suggestions from the experts:

Prepare a written policy. The policy should indicate that the hospital intends to comply with EMTALA and will make reasonable efforts to assist people in need near the campus.

Indicate the physical parameters to your staff. But emphasize that judgment calls may be necessary. It might be permissible to go a little farther in some cases, or not as far in other cases, says Mark Kadzielski, JD, head of the West Coast health practice for the law firm of Fulbright & Jaworski in Los Angeles.

"Do you have to run a gurney down the street in six feet of snow? Maybe not," Kadzielski says. "Let people know you don’t expect them to run 250 yards no matter what’s going on."

Include hospital security in your inservices. Because security officers may be the ones to receive notice that help is needed, they need to understand when EMTALA applies and how to initiate the hospital’s response.

Designate certain staff members to respond. You might need to say that certain nurses would respond from the emergency department, for instance. It’s probably not a good idea to let a physician leave the emergency department because that could leave the area uncovered, says John C. West, JD, MHA, DFASHRM, senior health care consultant with AIG Consulting in Atlanta.

• Provide necessary supplies. It’s a good idea to set aside a gurney and a basic emergency kit that responders can grab and go.

• Always call 911. The protocol should require that the hospital call 911 whenever staff go out for a patient, unless the patient is immediately outside the door. This ensures that there is no delay in case the hospital staff cannot help the person for some reason.

Always enlist the aid of hospital security. When staff must leave the hospital to get the patient, make sure hospital security responds as a safety measure.

Caution your staff not to take unnecessary risks. EMTALA does not require that your staff forge into danger. Make sure your staff knows that they should not put themselves at unnecessary risk.

"If there’s a brawl in the bar across the street, call 911 and let them handle it. Someone’s going to be hurt, and it might be your people," West says. "Make sure your people are trained to avoid violence. They shouldn’t try to be medics on a battlefield."

EMTALA conference scheduled

Educate your entire staff about EMTALA through a one-hour teleconference on Dec. 5 through "Basic EMTALA: What EVERY Medical Professional Should Know." The teleconference will be conducted by Robert A. Bitterman, MD, JD, FACEPT, and Mary Kay Boyle, RN, JD, and presented by American Health Consultants. Cost is $199. Each listener has the opportunity to earn approximately one nursing contact hour or up to one AMA category 1 CME credit. For more information, call (800) 688-2421 to register or for more information.