Publication MO-13-08-CRThis material was prepared by Primaris, the Medicare Quality Improvement Organization for Missouri, under contract with the Centers for Medicare & Medicaid Services (CMS), an agency of the U.S. Department of Health and Human Services. The contents presented do not necessarily reflect CMS policy

Physician Reviewer Training:EMTALA

Sharon Hoffarth, MD, MPH, FACPM

Chief Medical Officer

Objectives

• Understand EMTALA from a regulatory perspective

• Understand the Physician Review Worksheet – the format,

the regulatory definitions, the meaning behind the questions

• Understand the importance of a rationale that supports each

response

• Understand the links between questions to provide

consistency to the PR’s answers and rationales

• Understand Primaris’ internal process for conducting an

EMTALA review

• “Patient dumping”

− Sentinel cases in Kentucky and Missouri

• EMTALA

- Part of the Social Security Act

Revised §1866 and added §1867

- Known as COBRA 1985, effective 1987

- Applies to any and all individuals

- Regardless of insurance/Medicare status

Historical Perspective

Basic Tenets of EMTALA

• Applies to any facility with a designated ED & their physicians

• Facilities are obligated to provide medical screening exam (MSE)− Sufficient to reasonably indicate the presence or

absence of an emergency medical condition (EMC)

• If an EMC exists, then facility must:− Treat until stable or− Perform an appropriate transfer

• Patient-retained rights− Decline treatment− Refuse appropriate transfer− Request inappropriate transfer

Fundamental Requirements

• Medical screening examination (MSE) sufficient to determine

whether an Emergency Medical Condition (EMC) exists

• Necessary treatment provided to stabilize an emergency

medical conditions (including labor) prior to discharge or

transfer

• Determination of the necessity of transfer and a safe mode

of transfer, as appropriate

• The QIO must also identify any other concerns, particularly

quality of care issues

Medical Screening Examination (MSE) – Appropriate?

1a. Did the hospital provide a medical screening

examination that was appropriate to the individual’s

medical complaint(s) and symptoms?

- Triage is NOT an MSE; MSE is a process that may involve

multiple steps and reassessment over time

- Must be performed by a Physician or a Qualified Medical

Person (QMP) – for a psychiatric complaint, this may

mean evaluation by a psychiatrist or other qualified

mental health professional

Medical Screening Examination (MSE) – sufficient?

1b. Did the hospital provide (within its capability –

including ancillary services routinely available and

consultations by on-call specialist physicians) a

medical screening examination that was, within

reasonable clinical confidence, sufficient to determine

whether or not an EMERGENCY MEDICAL CONDITION

(as defined below) existed?

Medical Screening Exam -- Sufficient to Determine Whether an Emergency Medical Condition Exists

• Consider whether evaluation by or consultation with

psychiatrist or other mental health professional is indicated

• Must be sufficient to r/o out underlying:

- Trauma

- Disease/organic condition that might cause or contribute to

the presenting symptoms

• Substance Abuse

− Sufficient to r/o medical, toxic, psychiatric, and trauma causes

for the apparent state

Emergency Medical Condition (EMC)

2. Did this individual have an EMERGENCY MEDICAL

CONDITION as defined by Part (1) of the statutory

definition noted above? (Individual conditions

meeting the definition in Part 2 above are discussed

in subsequent questions.)

www.medlaw.com

Emergency Medical Condition -- Regulatory Definition

Acute symptoms of sufficient severity (including severe pain,

psychiatric disturbances, and/or symptoms of substance abuse) such

that absence of immediate medical attention could reasonably result

in:

• Placing pt’s health in serious jeopardy

• Serious impairment to bodily functions

• Serious dysfunction of any bodily organ/part

• This includes the health of a pregnant woman or fetus (Inadequate time to

effect a safe transfer before delivery and/or transfer may pose threat to health

of the woman or her unborn child)

• This also includes psychiatric conditions and substance abuse

Emergency Medical Condition – Psychiatric Conditions

• Medical conditions includes psychiatric conditions

− Severe depression

− Insomnia

− Suicide attempt or ideation

− Dissociative state

− Inability to comprehend danger

− Inability to care for one's self

www.medlaw.com

Emergency Medical Condition -- Pregnancy

3. Was this a pregnant woman who was having

contractions?

- If “Yes” and the pregnant woman was

transferred/discharged, at the time of the transfer/discharge,

could it be determined with reasonable medical certainty

that there would be adequate time to effect a safe transfer to

another hospital before delivery?

- If the pregnant woman with contractions was transferred/

discharged, at the time of transfer/discharge, could it be

determined, with reasonable medical certainty, that the

transfer/discharge would not pose a threat to the health or

safety of the individual or the unborn child?

Stabilizing Treatment

4. If an Emergency Medical Condition (EMC) existed, at the time

of transfer/discharge, was the individual’s EMC stabilized,

(meaning that no material deterioration of the condition was

likely, within reasonable medical probability, to result from or

occur during the transfer/discharge of the individual from the

hospital, or in the case of a pregnant woman in labor, that the

pregnant woman had delivered the child and the placenta)?

- Basically, can the individual be safely discharged home?

Stabilizing Treatment – Available Resources?

5a. Is there any evidence that the hospital was equipped with

such staff, services, or equipment necessary to “stabilize”

(assure within reasonable medical probability, that no

material deterioration of the condition is likely to result

from or occur during the transfer of the individual from a

hospital, or that a pregnant woman has delivered both the

child and the placenta) the emergency medical condition?

Stabilizing Treatment – available resources?

5b. If the hospital had the capability to stabilize the

individual and the individual was not stabilized prior

to transfer/discharge, is there any information

available to indicate WHY the emergency medical

condition was NOT stabilized prior to the

discharge/transfer?

Appropriate Transfers

Transfer is “movement (including the discharge)

of an individual outside a hospital’s facilities at

the direction of any person employed by (or

affiliated or associated, directly or indirectly,

with) the hospital, but does not include the

movement of an individual who….leaves the

facility without the permission of any such

person.”

Appropriate Transfer to Another Hospital

6a. If the individual was transferred to another hospital, is there evidence that

the sending hospital lacked the capabilities and facilities to provide further

medical examination and treatment to stabilize the individual’s medical

condition?

6b. If the individual was transferred to another hospital, did the transferring

hospital provide further examination and stabilizing treatment, within its

capabilities (including ancillary services routinely available to it) to

minimize the risks of transfers to the individual’s health and, where

relevant, the health of the unborn child?

Appropriate Transfer to Another Hospital -- Transportation

7. If the individual was transferred to another hospital, to

minimize the risks of transfer, did the transfer of the

individual require the use of qualified personnel and

transportation equipment, including life support measures if

medically appropriate?

8. If the individual was transferred to another hospital, were

the transportation equipment and personnel appropriate to

the transferred individual’s needs?

Medical Benefits of Transfer to Another Hospital

9a. At the time of the transfer, did a physician, or if a physician was

not physically present, another qualified medical person (in

consultation with a physician, who subsequently countersigned

the certification) certify in writing that, based upon the reasonable

risks and benefits to the individual, and based upon information

available at the time of transfer, the medical benefits reasonably

expected from medical treatment at another facility outweighed the

increased risks to the patient from effecting the transfer?

Medical Benefits of Transfer to Another Hospital

9b. Do you agree that at the time of transfer, based upon the reasonable

risks and benefits to the individual and based upon information available

at the time of transfer, the medical benefits reasonably expected from

medical treatment at another facility outweighed the increased risks to the

individual being transferred?

9c. If the individual (or a legally responsible person acting on the

individual’s behalf) requested the transfer in writing, was he/she informed

of the hospital’s obligations and of the medical risks of transfer?

Medical Benefits of Transfer to Another Hospital

10. Did the transferring hospital receive the agreement of the

receiving hospital to accept the transfer and to provide

appropriate medical treatment?

11. Does the documentation suggest that the transferring

hospital sent to the receiving hospital all available and

pertinent medical documentation related to the emergency

medical condition?

Medical Benefits of Transfer to Another Hospital

12. If the individual refused to consent to necessary

stabilizing medical treatment or to an appropriate

transfer, is there evidence the hospital first offered the

individual the further medical examination and

treatment or appropriate transfer, informing him/her of

the risks and benefits, and obtained the individual’s

informed, written refusal?

Recipient Hospital Refusal

13. Is there any evidence that a Medicare-participating

hospital that refused a transfer request has

specialized capabilities or services (not available at

the transferring hospital) that an individual required?

- Reverse dumping prohibited

- Hospitals with specialized capabilities may not

refuse appropriate transfer

- Patient requires such specialized capabilities

- Receiving hospital has capacity to treat patient

Delay in Treatment

14. Is there any evidence that the hospital under review

delayed for an inappropriate length of time the

provision of an appropriate medical screening

examination or further medical examination and

treatment?

Quality of Care

15. Do you have any specific concerns about the quality

of care rendered to the individual that have not already

been addressed fully above?

Summary

16. Please summarize the key facts of the case below and

any concerns or clarifications to your answers above

with regard to this case. Remember, do not state an

opinion regarding whether EMTALA was violated.

Initiation of an EMTALA Investigation

• Patient/family complaint

• Routine state survey

• Receiving hospital complaint

• Self disclosure

• Employee

EMTALA Investigation Prior to QIO Involvement

• Complaint acknowledgment (CMS)

• Investigate complaint (CMS & DHSS)

− DHSS state surveyors on-site

− Interviews

− Medical record & policy reviews

− ED log reviews

EMTALA Investigation – QIO Sequence

• Compliance determination (CMS)

− Immediate medical opinion (QIO)

− Advisory in nature only

• Statement of deficiencies (CMS)

• Plan of correction (from Hospital, and accepted by

CMS)

• Resurvey (DHSS)

EMTALA Investigation – After Determination of a Violation has been Finalized

• Due process provided to the hospital through the QIO

− 60-day review period

− Opportunity to discuss

− Case is re-reviewed and opinion forwarded to CMS

• CMS refers to OIG

− Consideration of exclusion and/or Civil Monetary

Penalties

EMTALA – Common Pitfalls to Avoid

• Specialist on-call says: “I can’t/won’t/don’t want to come in.”

• On-call physician says: “Call the surgeon/internist.”

• Patient’s Physician on the phone says: “Send her to my

office!”

• “There’s a Code in room 2.”

• “The doctor hasn’t answered my page.”

• Patient says: “I just want to get checked out.”

• Family says: “Can we take him in our car?”

EMTALA – Common Pitfalls to Avoid

• Insufficient systems in place

• Lapses in judgment

• Turf disputes

• Elopements

• Misunderstanding of “stabilized”

• Process not in place/followed

• Actively practicing

• Specialty

− Same specialty as attending physician or

− Type of service under review

• Practice in similar setting

• No conflicts of interest

• Agree to testify

QIO’s Internal EMTALA Review Process –Physician Reviewer Requirements

• Consider the information an ED treating physician:− Had, could have had, and/or should have had available to

him/her at the time of the individual's visit

− Is responsible to be aware of EMTALA provisions (e.g., §1867 provisions), and

− Could have discovered reasonably and which was necessary to adequately care for the individual (e.g., the physician should have taken an adequate history) at the time of the individual's visit.

QIO’s Internal EMTALA Review Process :Physician Reviewer -- Due Diligence

• Two levels of review

− 5 day review: the PR has 24 hours to review and return

the completed Worksheet

− 60 day review: the PR has at least a week to review and

return the Worksheet

− Primaris will overnight materials to the PR

− The Nurse Reviewer will make arrangements with you

to return the case file

QIO’s Internal EMTALA Review Process -- Summary

EMTALA References

• 42 CFR 489.24 and 42 CFR 489.20

− Special responsibilities of Medicare hospitals in

emergency cases

• 42 CFR 1003

− Civil monetary penalties & assessments

• State Operations Manual

− Interpretive Guidelines

• 42 USCA Section 1395dd

For questions and additional information, call Rita Ketterlin at 1-800-735-6776, ext. 153