[Editor’s note: This column addresses readers’ questions about the Emergency Medical Treatment and Labor Act (EMTALA). If you have a question you’d like answered, contact Steve Lewis, Editor, ED Management, 215 Tawneywood Way, Alpharetta, GA 30022. Phone: (770) 442-9805. Fax: (770) 664-8557. E-mail: firstname.lastname@example.org.]
Question: Does EMTALA apply to a patient who presents to the ED with a scheduled appointment? From time to time, patients arrive at a hospital dedicated emergency department with scheduled appointments. These patients may be presenting to a typical ED for an after-hours diagnostic test ordered by their personal physician or to the labor and delivery department for a prenatal stress tests. Are these patients covered by EMTALA, or is there some exception to EMTALA that applies to these types of patients?
Answer: The EMTALA law requires that a hospital must perform a medical screening examination (MSE) if a patient presents to a dedicated emergency department requesting or in need of an examination or treatment for a medical condition. There are no exceptions under the EMTALA law to the medical screening requirement, notes M. Steven Lipton, JD, an attorney with Davis Wright Tremaine in San Francisco who specializes in EMTALA.
However, the Centers for Medicare & Medicaid Services (CMS) stated last year in its official EMTALA Interpretive Guidelines that hospitals may be "exempt" from EMTALA in some instances. The guidelines cite two examples: First, the guidelines suggest there "may" be an exemption from the medical screening obligation for an individual who presents to a dedicated emergency department with orders from his/her physician for a nonemergency test. The guidelines suggest EMTALA may not necessarily apply if the purpose of the visit is to collect evidence and not to analyze the test results.
The guidelines then go on state that ". . . a hospital may be exempted from its EMTALA obligations to screen individuals presenting to its dedicated emergency department if the individual has a previously scheduled appointment."
These statements from CMS are intended to help hospitals define which patients are covered by EMTALA. However, the conventional legal wisdom of "exemptions" — or as they often called, "loopholes" — to a general statutory rule such as the medical screening obligation is that they usually are adopted by statute or regulation so as to have the force of law, Lipton notes.
Secondly, he says, exemptions usually are read very narrowly to avoid defeating the purpose of the statute, or in other words, having the exception "swallow" the rule.
In this case, the exemptions suggested in the guidelines were not adopted by statute or regulation, Lipton notes. They are the interpretation of EMTALA by CMS that are intended as guidance to its regional offices and surveyors who enforce EMTALA.
In addition, it is important to note the language of the guidance: Hospitals may be exempt from EMTALA, he explains. The use of "may" suggests these types of patient visits will be examined on a case-by-case basis, thereby leaving hospitals and physicians guessing as to whether their actions are covered or are not covered by EMTALA, Lipton points out.
To complicate matters, Lipton adds, the statement suggesting that scheduled appointments in the dedicated emergency department may be exempt from EMTALA is all that CMS says about the issue.
What can we make of a possible exemption from EMTALA for scheduled appointments? Does it apply only to the example in the guidelines, namely patients referred to a dedicated emergency department by their personal physicians for diagnostic tests? Does the exemption apply to other types of patients who present to the dedicated emergency department with same-day (or maybe same hour) dedicated emergency department appointments? Could the exemption possibly apply to patients presenting with chest pains or other ailments who are sent to a dedicated emergency department by their physicians who arrange to see them in the dedicated emergency department at a prescribed time?
At best, it is difficult to decipher the coded messages in the guidelines, Lipton concedes. It may be argued that a patient who presents to a dedicated emergency department with a scheduled appointment for a diagnostic test on orders of a staff physician is not covered by EMTALA if the patient does not request or appear to need examination or treatment for a medical condition, and the only services rendered by the dedicated emergency department staff are the performance of the diagnostic test and the reporting of the results to the patient’s referring physician, he says. This "exemption" could also apply to pre-scheduled stress tests rendered to women presenting to labor and delivery as part of their ongoing prenatal care, says Lipton. However, according to CMS, patients presenting for pharmaceutical services (such as infusion therapy, injections, or prescription refills) "generally" are covered by EMTALA, he says.
If there is an EMTALA exemption, these examples admittedly do not stretch the limits of the exemption very far, Lipton adds. In addition, the courts may decide that there are no exemptions to EMTALA and, therefore, hold a hospital liable for an EMTALA violation if a patient later claims there was a lack of a medical screening when he or she came to the dedicated emergency department with a prearranged appointment, he says. Therefore, hospitals and physicians may be proceeding at their peril if they use scheduled appointments in the dedicated emergency department to avoid the EMTALA obligations, he concludes.
For more information about EMTALA, contact:
- M. Steven Lipton, JD, Davis Wright Tremaine, Suite 600, One Embarcadero Center, San Francisco, CA 94111-3611. Phone: (415) 276-6500.