The Emergency Medical Treatment and Active Labor Act (EMTALA: 42 U.S.C. sections 1395cc, 1395dd and OBRA amendments of 1989 and 1991) is riddled with requirements that can be a minefield to navigate. According to data from the September 27, 1999 issue of Physician Compliance Alert and the Office of the Inspector General (OIG), EMTALA statutes, which are supposed to target hospitals, are now increasingly targeting physicians and the fines are greater than those in the past. In fact, 15 cases have been settled with physicians, 13 of which occurred in the last four years. To reduce the chance of running afoul of government investigators, neurosurgeons must be made aware of the following risks.
Areas of Risk
- Medical screening examination . Physicians must provide an appropriate medical screening examination for any patient entering a hospital emergency department (ED) who requests an examination or treatment for a medical condition. This examination also includes ancillary services available to the ED, as well as the specialists on call. This also embraces managed care patients whose health plan may or may not authorize ED visits.
- Stabilizing treatment for emergency medical conditions and labor. If an emergency medical condition exists, further medical examination and treatment must be provided to stabilize the patient before transferring. According to the statute, stabilizing with respect to an emergency medical condition means “a medical condition manifesting itself by acute symptoms of sufficient severity (including severe pain) such that the absence of immediate medical attention could reasonably be expected to result in placing the health of the individual in serious jeopardy, serious impairment of bodily function, or serious dysfunction of any bodily organ or part.” Physicians are cleared of responsibility if they obtain written consent from a patient refusing further treatment or requesting a transfer.
- Restricting transfer until a patient is stabilized. If a patient has a medical condition that has not been stabilized, physicians cannot order a transfer unless certain criteria are fulfilled. Such criteria include: a) the patient must be informed as to the risks of transfer. If the patient elects to transfer anyway, written authorization from the patient must be obtained; b) the physician, based on the information available, must certify in writing the risks and benefits of transfer; and c) if a transfer is warranted, the transfer must be to an appropriate medical facility.
According to a recent Special Advisory Bulletin on the Patient Anti-Dumping Statute(64 Fed Reg. 61353) “Once a managed care enrollee comes to a hospital that offers emergency services, the hospital must provide the services required under the anti-dumping statute without regard for the patient’s insurance status or any prior authorization requirement of such insurance.” Data from the Physician Compliance Alert indicates that the most common violators are ED doctors seeking prior authorization from managed care plans before treating patients, and on-call doctors who fail to show when called in for emergencies.
OIG Disallows Certain Terms
The November 10, 1999 Special Advisory Bulletin further outlines provider EMTALA responsibilities to managed care patients. According to the Advisory, hospitals and treating physicians cannot delay screening or stabilizing treatment due to managed care pre-authorization contract obligations. Furthermore, no pre-authorization can be sought until screening is complete and stabilization treatment is started. Additional OIIG interpretations:
- A hospital may not delay screening or stabilizing treatment to prepare an advanced beneficiary notice.
- Patients inquiring about medical costs must be told that the hospital will provide emergency screening and stabilizing services, regardless of their finances.
- Despite indicating a desire to leave a facility, the hospital and its physicians must offer treatment and inform patients of its necessity and the risks of leaving without receiving care. If a patient still wishes to leave, a written waiver should be secured.
EMTALA Expansion Expected
Recently, the OIG broadened its interpretation of EMTALA to include patients who are unstable and in a hospital. Thus, if a neurosurgeon discharges a patient admitted to the hospital in an unstable condition, he or she could be violating EMTALA. Regulations defining that position have yet to be published, but all neurosurgeons should remain alert for these regulatory changes.
Another regulatory interpretation that goes into effect in early 2000 will be broader EMTALA definitions of what constitutes an emergency department. All hospital property, including “the entire main hospital campus, the parking lot, sidewalk and driveway, as well as any other facility or organization that is located off the main hospital campus but has been determined…to be a department of the hospital” will be included. With this in mind, neurosurgeons should seriously consider EMTALA compliance plans for their practices. With fines up to $50,000 and/or expulsion from the Medicare program, you can’t afford to ignore EMTALA.
John A. Kusske, MD, former Chair of the AANS Managed Care Advisory Committee, and Cherie L. McNett, Senior Manager of Regulatory Affairs for the AANS/CNS Washington Office, contributed to this report.