06/01/2004

EMTALA Compliance: Practical Considerations

Sanford V. Teplitzky
410-347-7364
teplitzky@ober.com

Steven R. Smith
202-326-5006
ssmith@ober.com

Appeared in CCH Healthcare Compliance Letter
June 1, 2004

The Emergency Medical Treatment and Active Labor Act ("EMTALA" or the "Act") was passed by Congress in 1986. The purpose for passage of the Act was stated by the Department of Health and Human Services in the preamble to the Final Rule on the Responsibilities of Medicare Participating Hospitals in Treating Individuals with Emergency Medical Conditions published September 9, 2003:

Congress enacted these antidumping provisions in the Social Security Act because of its concern with an "increasing number of reports" that hospital emergency rooms were refusing to accept or treat individuals with emergency conditions if the individuals did not have insurance:

"…the Committee is most concerned that medically unstable patients are not being treated appropriately. There have been reports of situations where treatment was simply not provided. In numerous other situations, patients in an unstable condition have been transferred improperly…. ¹

As a result of these concerns, Congress passed the Act which requires, in broad terms, that for hospitals with emergency departments, if an individual comes to the emergency department and a request is made on the individual’s behalf for examination or treatment for a medical condition, the hospital must provide an appropriate medical screening examination and, if an emergency medical condition is found to be present, the hospital must also provide necessary stabilizing treatment or arrange for a transfer of the individual as permitted by the statute. ² However, each of these broad requirements includes numerous details that must be adhered to in order for the hospital to be in compliance with the Act. In addition, the Act (and implementing regulations³) also contains many other requirements that a hospital must satisfy. Some of these other requirements are:

• To post signs in the emergency department that explain the rights of individuals with emergency medical conditions and women in labor who come to the emergency department for health care⁴;
• To create and maintain a list of physicians who are on call and to make certain decisions about conflicts that may be presented for physicians who may be on call at the same time for different hospitals or who want to perform elective surgeries while they are on call⁵;
• To maintain a central log on individuals who come to the emergency department⁶;
• To not delay the performance of a medical screening examination or the initiation of stabilizing treatment to inquire about insurance or payment for care⁷;
• To report other hospitals who inappropriately transfer patients to the hospital in violation of the Act⁸; and
• To comply with the various documentation requirements for transfers, consents and refusal to consent to treatment.⁹

Policy Development
Compliance with the Act requires a thorough understanding of its requirements and the applicable regulations. The best way to approach compliance with the Act is through the development and adoption of a comprehensive policy that addresses each of the Act’s requirements.

The development of the policy is almost as important as the final policy. Key stakeholders should be involved in the development of the policy. This includes representation from emergency department physicians, the part of the medical staff responsible for the development of on call physician schedules, nurses and other professionals in the emergency department, the hospital’s business department or office, and administrative personnel in charge of the emergency department. At some point, the hospital’s legal counsel should also be involved to review the completed policy (at a minimum) or at an earlier point in the process to ensure that the individuals responsible for drafting the policy have a complete understanding of the requirements of the Act.

The initial charge of the committee should be to understand how the emergency department actually works in regard to the requirements of the Act regardless of what policies may exist currently. By having individuals who work in the emergency department as part of the committee responsible for policy development this task will be greatly facilitated. It is very possible that a hospital’s actual practice is significantly different from what a policy says it should be. By understanding the current practice, a hospital can assess how far it has to go to ensure that its practices are compliant.

The next step is to compare the actual practices in the emergency department with whatever policies exist at the hospital. It is imperative that the practices in the emergency department be consistent with the policies of the hospital because the personnel in the emergency department will change over time. The policy should be the constant in this equation so that any questions regarding practice can be resolved by reference to the policy.

The policy should bear a title that accurately describes the substance to follow. Too many hospital administrators and directors believe that the Act is designed to simply regulate how and when patients are transferred to and from hospitals. Policies are created and entitled as "transfer" policies with the intent that they satisfy the requirements of the Act. This is not only wrong, it is also dangerously misleading to employees of the hospital who may believe that their only obligation under the Act is to be concerned with transfers.

The policy should begin with a clear statement of the hospital’s intent to comply with all aspects of the Act. This affirmatively puts employees and providers on notice of the scope of the policy and should eliminate any surprise at the detail that is encompassed within the policy. The policy should contain definitions of key words and phrases that are important to understanding the policy and the obligations of individuals under the policy. The policy should address the various requirements imposed by the Act on hospitals and physicians and the procedures the hospital chooses to put in place to deal with them. Some provisions of the Act allow the hospital flexibility in how it will address those provisions¹⁰ so it is important that a hospital make decisions about these issues either before or during the policy development process. This again emphasizes the need for guidance from an individual that is well versed in the requirements of the Act.

Education
After the policy has been completed, the hospital should ensure that all members of the emergency department, and other relevant individuals and departments, are educated about the policy and any changes to practice that will result because of the policy. One of the benefits of having the involvement of representatives of providers and other groups in the emergency department on the committee during development of the policy is to secure their buy-in to the final product. Those persons on the committee should also be involved in the education of others to the policy. It is likely that an explanation on any controversial issues from a representative of the same group will be more easily accepted than one from hospital administration.

Hospitals should also consider periodic random audits to determine if the policy is actually being followed. Enforcement of the Act is driven by complaints. It only takes one complaint for an investigation to begin and the scope of the investigation will not be limited to the single complaint made. By performing random periodic audits, a hospital can ascertain for itself what weaknesses are occurring in its processes and practices and implement corrective measures.

Conclusion
EMTALA is a complex and important law that is applicable to most hospitals. Failure to comply with the requirements of the Act can lead to fines and decertification from Medicare. Compliance with the Act is best achieved by the development and adoption of a comprehensive policy that addresses all elements of the Act. The policy should be developed by a committee of individuals that is representative of the groups of providers that are most affected in practice by the requirements of the Act. The committee should also have advice from counsel that is knowledgeable in this area of the law in order to ensure that all of the requirements of the Act are addressed. Once an appropriate policy has been developed, the hospital should ensure that all relevant persons are educated about the policy. Finally, hospitals should consider periodic random audits to determine whether the practice in the hospital is consistent with the requirements of the policy.

¹ 68 Fed. Reg. 53222, 53223 (quoting H.R. Rept. No. 99-241, Part I, 99th Cong., 1st Sess. (1985), p. 27).
² 42 USC §1395dd (a) and (b).
³ 42 CFR §489.24 and 42 CFR §489.20.
⁴ 42 CFR §489.20 (q)(1).
⁵ 42 CFR §489.24 (j)(1) and (2); 42 CFR §(r)(2).
⁶ 42 CFR §489.20 (r)(3).
⁷ 42 CFR §489.24 (d)(4).
⁸ 42 CFR §489.20(m).
⁹ See, e.g., 42 CFR §489.24(d)(3), (d)(5) and (e)(1)(ii)(B).
¹⁰ See, e.g., 42 CFR §489.24 (j)(1) (requiring that hospitals maintain an on call list of physicians on its medical staff in a manner that best meets the needs of the hospital’s patients).