No. 1 EMTALA mistake: Confusing triage and MSE

What’s the most common mistake resulting in potential violations of the Emergency Medical Treatment and Labor Act (EMTALA) made by emergency nurses? Most likely, it is confusing triage for a medical screening examination (MSE).

"This is a major misconception in many facilities," says Stephen A. Frew, JD, vice president and risk consultant with Johnson Insurance Services, a Madison, WI-based company specializing in risk management for health care professionals.

ED nurses often believe that the triage classification determines whether EMTALA applies, or that triage is the MSE required by EMTALA, but these are dangerous misconceptions, he warns. Penalties include fines of up to $50,000 per violation and possible termination of the hospital’s Medicare provider agreement.

"Triage does not meet the medical screening requirements," he says. "Triage only determines the order in which patients receive the medical screening."

The fact that the patient is triaged as "nonurgent" doesn’t mean that the patient does not have an emergency medical condition as defined by EMTALA, says Frew. "The patient still must be seen and evaluated under EMTALA."

The MSE has nothing to do with triage and is not a sorting process, says Shelley Cohen, RN, CEN, a consultant and educator for Health Resources Unlimited in Hohenwald, TN. "It is a determination to answer one question: Does your patient have an emergency or not?"

To avoid violations of EMTALA, you must do the following:

  • Read the law.

Educate yourself on the definition and requirements of the MSE under EMTALA, and review your medical screening practices accordingly, says Cohen. "Read an actual copy of the federal law and learn the difference between triage and a medical screening examination. Then, ensure all ED registration staff understand the difference as well," she recommends. (To obtain a copy of the law, see resources, below.)

ED nurses should participate in educating unlicensed staff about MSE requirements, adds Cohen.

In addition, if administration is considering using nurses to perform the MSE, get something in writing from your state board of nursing that confirms this is within your scope of practice, she advises.

  • Remember that examination is different for every patient.

"Each patient will require different resources from your hospital to figure out whether an emergency exists," says Cohen. She gives the example of a man with an earache, no history of injury or other complaints, and normal vital signs. If a physician peeks his head in the door without even talking to the patient, reviews the triage notes, and decides it’s not an emergency, that may be the patient’s MSE.

In contrast, a 28-year-old female with abdominal pain would require more extensive testing to comply with the requirements, says Cohen. "Her screening exam may include a report from a radiologist after an abdominal ultrasound is done, because the presence of an ectopic pregnancy would be a medical emergency," she says.

  • Don’t discuss money before the MSE is completed.

When you are finished triaging the patient, the patient may go to an exam room, a registration desk, or back to the waiting room, says Cohen. "If the next step involves questions about ability to pay, you have to ask yourself if the medical screening exam is being delayed," she says.

For example, if patients are being registered at the bedside, you can ask any questions about anything you want except for the ability to pay, which must be delayed until after the MSE is done, says Cohen.

If the patient is waiting for the next step in care to begin, you could conceivably argue that discussion about payment is permitted, because this discussion is not causing any delay in care, says Cohen. For example, if you are waiting for the results of an abdominal ultrasound and you still don’t know if the patient has an emergency, it might be legally defensible to address payment issues while waiting.

"It may take an hour and 15 minutes to get a report back from radiology, and you are not delaying anything," says Cohen. "But could somebody take that to task? Sure they could."

The best rule of thumb is to always put the patients’ interests first, Cohen recommends. "You can what if’ this whole EMTALA thing to death, and the bottom line will always be, did you do what is in the best interest of the patient, and did you do what was reasonable in that particular situation," says Cohen. "If you look at the specific wording of the law, it uses the word reasonable’ repeatedly for a reason."

Sources/Resource

For more information about medical screening examinations and the Emergency Medical Treatment and Labor Act, contact:

  • Shelley Cohen, RN, CEN, Health Resources Unlimited, 522 Seiber Ridge Road, Hohenwald, TN 38462. Telephone: (888) 654-3363 or (931) 722-7206. Fax: (931) 722-7495. E-mail: educate@hru.net. Web: www.hru.net.
  • Stephen A. Frew, JD, Vice President and Risk Consultant, Johnson Insurance Services, 525 Junction Road, Suite 2000, Madison, WI 53717. Telephone: (608) 245-6560. Fax: (608) 245-6585. E-mail: sfrew@johnsonins.com.

To obtain the full text of the Emergency Medical Treatment and Labor Act regulations, go to www.medlaw.com. Under "New EMTALA Regulations Released — Effective 11/10/2003" and beside "Download regulations in PDF format," click "View."