Emergency Medical Treatment and Labor Act (EMTALA) How to avoid an investigation and being a story I tell. David Wright Centers for Medicare and Medicaid Services (CMS) Dallas Regional Office Arkansas Hospital Association April 23, 2015 David Wright Centers for Medicare and Medicaid Services (CMS) Dallas Regional Office Arkansas Hospital Association April 23, 2015

Civil Liability versus Administrative Enforcement l Two Year statute of Limitations on Civil Cases alleging EMTALA Violation l CMS not involved, complainant not required to file complaint or have substantiated violation l Two Year statute of Limitations on Civil Cases alleging EMTALA Violation l CMS not involved, complainant not required to file complaint or have substantiated violation

EMTALA-Related Requirements l EMTALA Compliance Plan l Reporting Requirement l Signage l Medical Records Requirement l On-Call Physician List l Central Log l EMTALA Compliance Plan l Reporting Requirement l Signage l Medical Records Requirement l On-Call Physician List l Central Log

Reporting Requirement l Report to CMS or the state any time you have reason to believe the hospital received an individual who has been transferred in an unstable emergency medical condition from another hospital, in violation of the transfer requirements (489.24(d)).

Signage It’s the law! If you have a Medical Emergency or are in labor, you have the right to receive, within the capabilities and capacity of this hospital’s staff and facilities: An Appropriate medical screening examination. Necessary stabilizing treatment (including treatment for an unborn child) and, if necessary, an appropriate transfer to another facility. Even if you cannot pay or do not have medical insurance or you are not entitled to Medicare or Medicaid. This hospital does / does not participate in Medicaid. It’s the law! If you have a Medical Emergency or are in labor, you have the right to receive, within the capabilities and capacity of this hospital’s staff and facilities: An Appropriate medical screening examination. Necessary stabilizing treatment (including treatment for an unborn child) and, if necessary, an appropriate transfer to another facility. Even if you cannot pay or do not have medical insurance or you are not entitled to Medicare or Medicaid. This hospital does / does not participate in Medicaid.

Medical Records Retention l The hospital must maintain medical and other records related to individuals transferred to or from the hospital for a period of five years from the date of the transfer.

On-Call Physicians l Ensure ED is prospectively aware of which physicians, including specialists and sub-specialists are available to provide treatment necessary to stabilize individuals with emergency medical conditions. l Hospital must determine and enforce response times. l Physician must come in, cannot refer patient with emergency medical condition to private physician’s office. l Ensure ED is prospectively aware of which physicians, including specialists and sub-specialists are available to provide treatment necessary to stabilize individuals with emergency medical conditions. l Hospital must determine and enforce response times. l Physician must come in, cannot refer patient with emergency medical condition to private physician’s office.

On-Call Continued l Hospital Discretion, Simultaneous call, Elective Surgery l Still must provide for emergency services if physician unavailable due to elective surgery or simultaneous call l If on-call chooses to send non- physician practitioner, treating physician may still request on-call present in person. l Hospital Discretion, Simultaneous call, Elective Surgery l Still must provide for emergency services if physician unavailable due to elective surgery or simultaneous call l If on-call chooses to send non- physician practitioner, treating physician may still request on-call present in person.

Central Log l To track the care provided to each individual who comes to the hospital seeking care for an emergency medical condition, including whether the individual refused treatment, was refused treatment, admitted, treated, stabilized, transferred or discharged.

EMTALA Requirements l Screening l Stabilizing Treatment l Delay in examination or treatment l Appropriate Transfer l Recipient Hospital Responsibilities l Screening l Stabilizing Treatment l Delay in examination or treatment l Appropriate Transfer l Recipient Hospital Responsibilities

Screening l Determine presence/absence of emergency medical condition. l Performed by Qualified Medical Personnel. l EMTALA applies until patient stabilized or determination that there is no emergency medical condition. l Determine presence/absence of emergency medical condition. l Performed by Qualified Medical Personnel. l EMTALA applies until patient stabilized or determination that there is no emergency medical condition.

Screening Cont’d l Present to Dedicated ED (Licensed, Held Out, 1/3 Presentations-calendar year) Request for Medical Treatment only. Everyone must be screened. l Non-Dedicated ED-Request for Emergency Medical Treatment only (Prudent Layperson standard) l Eliminates application to non-emergency off- campus sites. l Parking of EMS patients. Must still be assessed upon presentation l Present to Dedicated ED (Licensed, Held Out, 1/3 Presentations-calendar year) Request for Medical Treatment only. Everyone must be screened. l Non-Dedicated ED-Request for Emergency Medical Treatment only (Prudent Layperson standard) l Eliminates application to non-emergency off- campus sites. l Parking of EMS patients. Must still be assessed upon presentation

FAMILY LAWYER: HOSPITAL WORKER STEPPED OVER DEAD PATIENT DAYS BEFORE BODY WAS DISCOVERED The Los Angeles Times (10/24, Dolan) reports on allegations that a hospital employee in San Francisco saw the body of a patient lying in an “emergency stairwell” and stepped over it days before the fatality was discovered. Haig Harris, an attorney representing the deceased patient’s family, says he was informed that the hospital employee saw the body of Lynne Spalding, 57 and reported it to a nurse, though it is unclear why it took days for anyone to take action. FAMILY LAWYER: HOSPITAL WORKER STEPPED OVER DEAD PATIENT DAYS BEFORE BODY WAS DISCOVERED The Los Angeles Times (10/24, Dolan) reports on allegations that a hospital employee in San Francisco saw the body of a patient lying in an “emergency stairwell” and stepped over it days before the fatality was discovered. Haig Harris, an attorney representing the deceased patient’s family, says he was informed that the hospital employee saw the body of Lynne Spalding, 57 and reported it to a nurse, though it is unclear why it took days for anyone to take action.

Stabilizing Treatment l Within capability and capacity of hospital, must ensure that: l the Emergency Medical Condition is removed, or l the patient is Stable for Discharge l Within capability and capacity of hospital, must ensure that: l the Emergency Medical Condition is removed, or l the patient is Stable for Discharge

Stabilizing Treatment l EMTALA obligation ends when patient admitted as inpatient, even if not stabilized. l Expectation of overnight stay. l EMTALA obligation ends when patient admitted as inpatient, even if not stabilized. l Expectation of overnight stay.

Delay in Examination or Treatment l Hospital may not delay providing an appropriate medical screening examination in order to inquire about the individual’s method of payment or insurance status.

Delay Cont’d l Prior Authorization explicitly prohibited until after screening and initiation of stabilizing treatment l Reasonable registration, including insurance information, allowed. l Prior Authorization explicitly prohibited until after screening and initiation of stabilizing treatment l Reasonable registration, including insurance information, allowed.

Reason for Transfer l Patient request (in writing, with risk / benefit understanding). l Physician certification that benefits outweigh the risks. l Patient request (in writing, with risk / benefit understanding). l Physician certification that benefits outweigh the risks.

Appropriate Transfer l Transferring hospital minimizes risks (within capability and capacity). l Receiving facility agrees to accept. l Transferring hospital sends all medical records. l Transfer effectuated with appropriate personnel and transportation. l Transferring hospital minimizes risks (within capability and capacity). l Receiving facility agrees to accept. l Transferring hospital sends all medical records. l Transfer effectuated with appropriate personnel and transportation.

Recipient Hospital Responsibilities l Participating hospitals with specialized capabilities may not refuse a request for an appropriate transfer of an individual requiring that capability if the facility has the capacity to treat the individual.

Recipient Hosp Resp Cont’d l Capability or Capacity only reason for refusal of transfer request under EMTALA l This requirement applies to any participating hospital with specialized capabilities, regardless of whether the hospital has a dedicated emergency department. l Capability or Capacity only reason for refusal of transfer request under EMTALA l This requirement applies to any participating hospital with specialized capabilities, regardless of whether the hospital has a dedicated emergency department.

Don’t be this hospital… EMTALA and Ebola

Or these hospitals…

This really happened… l Patient presented with abdominal cramps and fever to large urban hospital. Despite no recent travel history, hospital staff were concerned patient may have Ebola. Drew blood for testing only to rule out Ebola. Refused to perform any other screening, testing, or treatment of patient’s symptoms until patient was confirmed negative for Ebola.

This JUST happened… l EMS transported a febrile prisoner who had recently arrived from the Congo (declared Ebola-free and off CDC heightened precautions list since November 2014) l EMS called State Public Health office enroute and State Epidemiologist on-call cleared this patient as potential Ebola. l Upon arrival at the hospital, EMS was met by hospital security (off-duty sheriff’s deputies) who ordered the crew and patient, through the squad car PA system, to stay in the ambulance. l The hospital then called the State Public Health Office, which again confirmed the patient was cleared as potential Ebola. Further calls from the State to the ED were not successful. l After an hour, the ambulance was ordered moved to the back of the hospital, but required to remain inside. l After an hour and 48 minutes, patient was allowed into the hospital, placed in isolation received an initial screening. l EMS transported a febrile prisoner who had recently arrived from the Congo (declared Ebola-free and off CDC heightened precautions list since November 2014) l EMS called State Public Health office enroute and State Epidemiologist on-call cleared this patient as potential Ebola. l Upon arrival at the hospital, EMS was met by hospital security (off-duty sheriff’s deputies) who ordered the crew and patient, through the squad car PA system, to stay in the ambulance. l The hospital then called the State Public Health Office, which again confirmed the patient was cleared as potential Ebola. Further calls from the State to the ED were not successful. l After an hour, the ambulance was ordered moved to the back of the hospital, but required to remain inside. l After an hour and 48 minutes, patient was allowed into the hospital, placed in isolation received an initial screening.

EMTALA/Ebola Guidance November 21,2014 l S&C EMTALA requirements and implications related for Ebola Certification/SurveyCertificationGenInfo/Downloads/Survey-and-Cert-Letter pdf l S&C EMTALA and Ebola– Questions and Answers Certification/SurveyCertificationGenInfo/Downloads/Survey-and-Cert-Letter pdf l S&C EMTALA requirements and implications related for Ebola Certification/SurveyCertificationGenInfo/Downloads/Survey-and-Cert-Letter pdf l S&C EMTALA and Ebola– Questions and Answers Certification/SurveyCertificationGenInfo/Downloads/Survey-and-Cert-Letter pdf

Screening for Ebola l Every hospital is required to perform a screening examination within their capability and capacity l Every hospital has the capability to isolate a patient who meets the screening criteria to be a potential Ebola case l Contact local or state public health authorities to determine if Ebola testing is needed l If so, continue to provide treatment for the patient’s symptoms while awaiting the outcome of the test. l Every hospital is required to perform a screening examination within their capability and capacity l Every hospital has the capability to isolate a patient who meets the screening criteria to be a potential Ebola case l Contact local or state public health authorities to determine if Ebola testing is needed l If so, continue to provide treatment for the patient’s symptoms while awaiting the outcome of the test.

What does all of that really mean? l You have to provide a screening exam to everyone, taking whatever precautions may be necessary. NOT providing screening is NOT a necessary precaution. l Coordinate with local and state health departments. It works both ways…we’ll give great consideration to what they want you to do. But if they say Ebola is not in play, you have to give that the same amount of credence. l Continue to treat the symptoms. l You CAN set up an alternate screening location somewhere on your hospital property. l Just because you’re not a designated Ebola treatment center doesn’t mean you don’t have to deal with this. l You have to provide a screening exam to everyone, taking whatever precautions may be necessary. NOT providing screening is NOT a necessary precaution. l Coordinate with local and state health departments. It works both ways…we’ll give great consideration to what they want you to do. But if they say Ebola is not in play, you have to give that the same amount of credence. l Continue to treat the symptoms. l You CAN set up an alternate screening location somewhere on your hospital property. l Just because you’re not a designated Ebola treatment center doesn’t mean you don’t have to deal with this.

Other issues l Setting up a special Ebola unit or hospital l Transfer concerns l We have a brain. l Setting up a special Ebola unit or hospital l Transfer concerns l We have a brain.

Recent EMTALA Issues l On-call refusal to come in / refusal to accept transfer l Triage vs. Screening (or “Screening Out”) l 250-Yard Rule l Diversion/Parking of EMS Patients l Helipads and Helicopter Transfers l Hospital-Owned and Operated Ambulances l EMTALA Waivers l On-call refusal to come in / refusal to accept transfer l Triage vs. Screening (or “Screening Out”) l 250-Yard Rule l Diversion/Parking of EMS Patients l Helipads and Helicopter Transfers l Hospital-Owned and Operated Ambulances l EMTALA Waivers

CMS Review Procedures l Possible Outcomes: l No violation l Past Violation, No termination l Violation, Immediate and Serious Threat l Violation, No Immediate and Serious Threat l All investigations referred to QIO prior to finding of violation (MMA) l Possible Outcomes: l No violation l Past Violation, No termination l Violation, Immediate and Serious Threat l Violation, No Immediate and Serious Threat l All investigations referred to QIO prior to finding of violation (MMA)

EMTALA Penalties CMS: l Medicare Termination DHHS Office of the Inspector General: l Hospital l CMP of $50,000 per violation for hospital ($25,000 if less than 100 Beds) l Physician l CMP of $50,000 per violation l Exclusion from Medicare and Medicaid programs CMS: l Medicare Termination DHHS Office of the Inspector General: l Hospital l CMP of $50,000 per violation for hospital ($25,000 if less than 100 Beds) l Physician l CMP of $50,000 per violation l Exclusion from Medicare and Medicaid programs

Three Keys to Compliance: Consistency Complaint system Knowledge Consistency Complaint system Knowledge

18/12

6/100 th of each penny is spent on S&C Nationally 1.2 Cents is spent by CMS for Program Administration For every Medicare Dollar:

What else costs $400 million? What PlayStation4 and Xbox One owners spend nationally on energy costs...just to keep the systems in standby mode.* (Natural Resources Defense Council) *Not my kids.

EMTALA Websites General EMTALA Information l CMPs Imposed by the Office of the Inspector General l General EMTALA Information l CMPs Imposed by the Office of the Inspector General l

Contact Info l David Wright PH (Direct): (214) * *67 Blocks your number. I’ll still answer l David Wright PH (Direct): (214) * *67 Blocks your number. I’ll still answer