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PROFESSIONAL PRACTICE

Essential information on the nonclinical side of the profession

Nicole Gara
DEPARTMENT EDITOR

EMTALA: A general guide for the physician assistant

Lynn A. Lavia, PA-C, MA, PhD

Dr. Lavia works in the emergency department at Hutchinson Hospital, Hutchinson, Kan. Ms. Gara is vice president of government and professional affairs at the AAPA.

A Lansing, Mich, man has sued a hospital because he was banned from its outpatient dialysis center.¹ His suit stated that without dialysis he would die, making it an emergency situation, and that the hospital was therefore in violation of the Emergency Medical Treatment and Labor Act (EMTALA)² because the law requires a hospital to provide treatment for emergency medical conditions.

This case presents another twist in the continually evolving application of EMTALA, a federal law written to prevent patient dumping by hospitals but that now dictates the basic protocol of how a health care facility evaluates and transfers emergency patients. While the Michigan case seems unique, it reveals yet another example of how difficult it is to comply with the law—a problem faced by hospitals, their emergency departments (EDs), and their staffs, which often include PAs.

This article discusses the basic principles of EMTALA as well as legal terms arising from it: the emergency medical condition (EMC), the medical screening exam (MSE), stabilization, and transfer. EMTALA enforcement policies and some case examples of fines levied are also described.

The EMTALA law

EMTALA is part of a larger set of laws enacted in 1986 called COBRA (Consolidated Omnibus Budget Reconciliation Act)^3,4 and includes various later updates and changes based on amendments, regulations, and judicial decisions. In the 1980s, concerns surfaced that some EDs were transferring critically ill patients to other facilities for reasons that could put patient health at risk—transfers referred to as patient dumping. EDs were accused of inadequate evaluation of patients, transferring for nonmedical reasons, failing to obtain informed consent for treatment or transfers, failing to warn the receiving hospital that the patient was coming, and failing to send copies of medical records with the patient during transfer—with the result that receiving hospitals would often have to begin patient evaluation anew. Congress passed EMTALA in response to such concerns.

Any hospital that accepts Medicare certification agrees to abide by EMTALA regulations. The law is summarized as follows: Anyone who is on the premises of the hospital and requests emergency care is entitled to evaluation. Usually, "premises" means the ED, but it may also include the driveway, other parts of the hospital (within 250 yards of the main buildings), and associated clinics, as well as ambulances (whether or not they are owned by the hospital).⁵

When a patient claims to have an EMC, the ED must perform an adequate MSE to determine if an EMC exists. If an EMC is diagnosed, the patient must be stabilized, possibly requiring the help of hospital-associated (on call) physicians. Under appropriate conditions, a transfer is made, either as a discharge from the hospital or, if necessary, to an appropriate receiving hospital, with appropriate documentation. These services must be well advertised (posted signs in the ED area must advise that EMCs will be evaluated and treated). While EMTALA is aimed at the treating hospital and physician, the PA, acting as an agent of the physician and/or the hospital, also falls under EMTALA governance.⁶

The EMC and MSE

EMTALA defines an EMC as a "medical condition with sufficient severity (including severe pain, psychiatric disturbances, symptoms of substance abuse, pregnancy/active labor) such that the absence of immediate medical attention could place the individual's health at risk."^2,7 Note that psychiatric as well as medical emergencies are included, and thus EMTALA applies to situations where patients admit to suicidal or homicidal thoughts. For such patients, a psychiatric evaluation may be required in addition to a medical exam to determine if the person's health is at risk.

The MSE is the "process required to reach with reasonable clinical confidence the point at which it can be determined whether a medical emergency does or does not exist."^2,7 Note the term process. The MSE requires a history and physical examination, along with appropriately ordered tests available at the institution, and is an ongoing process that continues until it has been determined that the patient either does have an EMC or does not.

The MSE is not the same as an ED triage. Mere log-in at the ED and triage by the nursing staff does not meet the EMTALA MSE requirement. The MSE must also be performed before information about a patient's insurance status is attained.

A violation is more likely to be assessed if there is "a disparity in screening or treatment or deviation from existing procedures."⁸ One of the most common violations of EMTALA is an institution's failure to provide an adequate and timely MSE. The MSE must be provided for all patients to the same level of standard of care. That is, if the clinician performs an MSE on some patients, the provider must perform an MSE on all patients, regardless of insurance or other status.

The hospital bylaws must specify who performs the MSE, either a physician or "other qualified medical person."^2,7 A PA (or other nonphysician clinician), if specified in hospital bylaws, is able to perform the MSE. At the University of California-Davis, experienced ED nurses have been trained to perform this function using certain protocols.⁹

Once the MSE and workup have been performed and the condition has been stabilized or the patient is determined not to have an EMC, EMTALA requirements are met. Although the hospital staff is required to perform an MSE, the results are not subject to EMTALA. Take the example of a 21-year-old woman with abdominal pain who presents to the ED and is given an appropriate MSE. She has appendicitis, but clinicians conclude incorrectly that she has ovarian pain. As long as an appropriate MSE was performed, EMTALA requirements are fulfilled—even if misdiagnosis occurs. Note too, however, that even when EMTALA regulations have been satisfied, other problems (such as a malpractice suit) can still arise as a result of misdiagnosis.

Stabilization and transfer

The legal definition of stabilization according to EMTALA is to "provide such medical treatment of the EMC necessary to assure within reasonable medical probability that no material deterioration of the condition is likely to result."^2,7

The MSE will have one of three results: No EMC is found, an EMC is diagnosed but the patient is stable, or an EMC is diagnosed and the patient is unstable. In the first case, the facility's obligation under EMTALA is satisfied. The provider provides appropriate treatment and discharges the patient. In the second case, the patient may be discharged, admitted as needed, or transferred to a receiving hospital, if required, for definitive treatment that is not available at the examining hospital. (In the case of transfer, appropriate EMTALA papers need to be filled out.) In all three cases, the EMTALA obligation is satisfied.

When the patient has an unstable EMC, ED clinicians may be able to stabilize the condition; if so, the EMTALA obligation ends. If stabilization attempts fail, however, the patient may require transfer to a second hospital where space is available and a specialist can provide definitive treatment. This will fulfill the EMTALA obligation provided that the benefits of transfer outweigh the risks and that paperwork is filled out to that end. The paperwork must specify the benefits and risks of transfer and be signed by the patient and provider. If a PA signs this form, he or she must do so under instruction from the supervising physician, who must then sign the form within 24 hours. The hospital must send ED records and copies of diagnostic workups to the receiving hospital along with the patient. Although not specified in EMTALA, under advanced trauma life support (ATLS) guidelines appropriately trained personnel must be available for transfer. If none are available, then a nurse or other medical provider not trained in ATLS must accompany the patient.¹⁰ Two other alternatives are allowable under EMTALA in the case of the unstable patient. The patient still has the right to sign out against medical advice, or the patient or a person acting for the patient may submit a written request for transfer to another facility.

The physician-on-call list kept by the ED is also addressed under EMTALA regulations. Physicians on this list must come in as requested by the ED provider or be subject to EMTALA fines.^2,7 In addition, a PA-on-call list can be kept (as specified by hospital regulations); PAs on this list called in to evaluate and stabilize a patient must decide if the on call physician should come in to assess the patient in the ED. If the ED provider requests the presence of the on call provider and he or she refuses to come in, this needs to be documented in the ED records. The on call provider may be charged with EMTALA violations.

The Department of Health and Human Services (HHS) Centers for Medicare and Medicaid Services (CMS, previously HCFA) is currently evaluating the appropriate use of on call lists and attempting to answer questions that have arisen. One being addressed is how often in a week someone may be on call, for example, in a small town, where the provider may be the only specialist available. When no specialist provider is available to a hospital and the hospital thus cannot provide a certain service, all patients needing emergency care for that service must be transferred or diverted regardless whether the primary care provider of the patient is on staff at the hospital.

Enforcement of EMTALA regulations

The regional offices of CMS investigate complaints of EMTALA violations. Confirmed violations are forwarded to the HHS Office of the Inspector General (OIG) to determine whether a fine should be levied. Additionally, private persons may bring lawsuits based on an EMTALA violation. CMS fines may be up to $50,000 per violation and include termination of the Medicare provider status of both the offending hospital and the providers violating the EMTALA statute. Receiving hospitals are required to report violations occurring in transferring hospitals within 72 hours or face fines of up to $50,000 as well. There is a 2-year statute of limitations for reporting EMTALA violations.

Only four hospitals have been terminated from the Medicare program because of EMTALA violations, all more than 11 years ago; two of these hospitals were later reinstated.⁴ On average, about 400 investigations of alleged EMTALA violations occur each year, with an average of 200 investigations resulting in confirmed violations.

Hospitals (not physicians or other providers) may be named as defendants in lawsuits that claim EMTALA violations. While physicians and PAs cannot be sued under EMTALA, plaintiff attorneys may include them in their suits initially. This technique is a way to exert pressure for a quick settlement since defendants may fear (unnecessarily) that a $50,000 fine that would not be covered by malpractice insurance will be levied against them.

A recent report by the General Accounting Office on the effect of the EMTALA regulations on patient dumping was published in June 2000.⁴ This report cited evidence that patient dumping had decreased since the law was enacted, but it noted a large increase in ED patient visits during the same period. Some of this increase may result from the law itself, but some also may be due to an increase in the numbers of uninsured patients seen by the nation's EDs.⁴

Advocacy groups for patients' rights are becoming more prominent and vocal in the United States. Some consumer groups have begun to publish information on the Internet about the EMTALA compliance of physicians and hospitals. One Web site, for example, lists 527 confirmed EMTALA violations at hospitals between 1997 and 2001 and notes that one in five US hospitals has been cited for EMTALA violations since 1988 ( www.citizen.org/questionablehospitals ). Some hospitals are now beginning to distribute patient rights brochures, which detail what each patient should expect when visiting the hospital. The distribution of these brochures appears to be a response to growing emphasis on patient rights and the dissemination of EMTALA information and increased EMTALA violation assessments.

REFERENCES

1. Martin T. Lansing man challenges ban at Sparrow. Lansing State Journal. January 3, 2002.

2. EMTALA statute: 42 USC 1395dd.

3. Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA), 99-272, p. 2.

4. Emergency Care: EMTALA Implementation and Enforcement Issues, United States General Accounting Office, June 2001, p 1.

5. Arrington v Wong. US Court of Appeals, 9th Circuit, argued and submitted July 12, 2000; San Francisco, Calif.

6. Gore CL. A physician's liability for mistakes of a physician assistant. J Leg Med. March 2000;21:125-142.

7. State operations manual for enforcement of 42 CFR 489-24. Appendix V, V-20. Health Care Financing Administration Web site. Available at: http://www.hcfa.gov/pubforms/pub07pdf/pub07pdf.htm . Accessed August 22, 2002.

8. King ML, Pewarson H. Other regulations: EMTALA: What Compliance Officers Need to Know. The 4th Annual National Congress on Health Care Compliance; April 23, 2001; Washington, DC.

9. Derlet RW, Kinser D, Ray L, et al. Prospective identification and triage of nonemergency patients out of an emergency department: a 5-year study. Ann Emerg Med. 1995;25:215-223.

10. Stabilization and transport. In: Advanced Trauma Life Support. 5th ed. Chicago, Ill: American College of Surgeons; 1994:296-298.

Lynn Lavia. Professional Practice: EMTALA: A general guide for the physician assistant. JAAPA 2002;9:15-19.

Copyright © 2002, Medical Economics Company, Inc. and the American Academy of Physician Assistants. Published by Medical Economics Company, Inc. at Montvale, NJ 07645-1742. All rights reserved.