2. www.mmmlaw.com EMTALA – Module 1 42 U.S.C. §1395dd HomeTown Health Educational Workshop Michele Madison and Brynne Goncher

3. www.mmmlaw.com Recent Official Publications Proposed Rule published May 9, 2002 in Federal Register Final Rule published September 9, 2003 in Federal Register Interpretive Guidelines published May 13, 2004 in State Operations Manual

4. www.mmmlaw.com General Requirement If any individual comes to a “dedicated emergency department” and a request is made for examination or treatment the hospital has an affirmative duty to provide an appropriate “medical screening” and take specific actions to determine if an “emergency medical condition” exists.

5. www.mmmlaw.com Patient Presents to Dedicated Emergency Department Dedicated Emergency Department (DED) — any department or facility of the hospital that either 1. is licensed by the State as an emergency department; 2. held out to the public as providing treatment for emergency medical conditions (name, signs, advertising); or 3. at least one third of the visits to the department in the preceding calendar year actually provided treatment for emergency conditions on an urgent basis.

6. www.mmmlaw.com One Third Rule To determine whether department meets the one third rule, guidelines instruct surveyors to: 1.Select representative sample of patient visits that occurred during previous calendar year in department to be evaluated for DED status, including unscheduled ambulatory patients who are routinely admitted for evaluation and treatment (i.e. labor and delivery or psychiatric) 2.Review 20-50 records of patients with diagnoses or presenting complaints which may be associated with EMC.

7. www.mmmlaw.com One Third Rule (continued) 3.Review cases to decide whether patients had EMC and, if so, received stabilizing treatment Was individual an outpatient? Was individual “walk in”? Did individual have an EMC and receive stabilizing treatment? If all three conditions exist for at least one third of the total cases reviewed, department is DED and has EMTALA obligation. When hospital is performing one third rule evaluation, better to be on conservative side.

8. www.mmmlaw.com Comes to the Emergency Department Individual “comes to the ED”: Presents at hospital’s DED and requests examination or treatment for a medical condition - OR - Presents elsewhere on hospital property and requests examination or treatment for “what may be” emergency condition.

9. www.mmmlaw.com Different Standards Dependent on Where Individual Presents Main ED Individual requests treatment for medical condition If no request for treatment, EMTALA obligations triggered only if “prudent layperson” would believe individual needs examination or treatment for emergency medical condition Elsewhere in hospital Individual requests treatment for “what may be” a medical condition If no request for treatment, EMTALA obligations triggered if “prudent layperson” would believe individual needs emergency examination and treatment Hospital may want to train all personnel who have contact with public

10. www.mmmlaw.com Ambulances Hospital-Owned Ambulances Individual “comes to the ED” when individual is in a ground or air ambulance owned or operated by hospital, even if ambulance not on hospital property... Except if ambulance under community-wide EMS protocols or protocols mandated by State law to transport individual to nearest facility Except if ambulance operated at direction of physician not employed or otherwise affiliated with hospital who owns ambulance Ambulance Owned by Someone Other Than Hospital Individual “comes to the ED” when ambulance arrives on hospital property For non-facility owned ambulances, an individual comes to the emergency department when the ambulance actually arrives on the facility’s property.

11. www.mmmlaw.com Helipad Patients Patients may be present on a hospital’s helipad while en route to another hospital. No EMTALA obligation for such hospital unless EMS technician determines hospital should treat patient (i.e. patient’s condition deteriorates, etc.).

12. www.mmmlaw.com Appropriate Medical Screening Requirement Should be provided to all patients who present to the Dedicated Emergency Department Screening must be an Appropriate Screening (should be the same for patients presenting with the same or similar symptoms or complaints) Performed by a Qualified Individual as determined by Hospital Bylaws or Rules and Regulations Provide before asking for any insurance or payment information

13. www.mmmlaw.com Emergency Medical Condition 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: (i) placing the health of the individual in serious jeopardy; (ii) serious impairment to bodily functions; (iii) serious dysfunction of any bodily organ or part; or (iv) a pregnant woman who is having contractions and (i) there is inadequate time to effect a safe transfer to another hospital; or (ii) transfer may pose a threat to the health or safety of the woman or the unborn child

14. www.mmmlaw.com Medical Screening Process Results in Non-Emergency Condition Can request payment or insurance information Treat if consent granted Results in Emergency Condition Stabilize Transfer if appropriate, but must be by the regulations

15. www.mmmlaw.com Certain Non-Emergency Services Non-Medical Conditions Hospital not obligated to provide medical screening examination if individual requests services that are not for medical condition (i.e. preventive care, gathering evidence). Blood Alcohol Tests (BAT) If law enforcement requests BAT but no examination or treatment, and prudent layperson would not believe person needed examination or treatment, no medical screening examination required. Incarceration When law enforcement requests clearance for incarceration, must provide medical screening examination.

16. www.mmmlaw.com Financial and Registration Inquiries No contact with patient’s insurance company until after medical screening examination and initiation of stabilizing treatment. Cannot delay treatment in order to receive authorization. Even if insurer denies authorization, must still stabilize. ED physician or non-physician practitioner may contact patient’s primary physician at any time, as long as does not “inappropriately delay” services.

17. www.mmmlaw.com Financial and Registration Inquiries (cont’d) May conduct “reasonable registration” May ask if have insurance, and if so, who with, as long as no delay Can’t “unduly discourage” individual from remaining for further evaluation. Staff member should be available to explain that hospital will provide screening and/or stabilization, regardless of individual’s ability to pay. Staff should encourage individual to discuss further financial responsibilities after screening

18. www.mmmlaw.com General Compliance If a patient has a Emergency Medical Condition, the Hospital must provide: Treatment as may be required to stabilize within the staff and facilities at Hospital Transfer to another facility within the regulations Admission in good faith in order to stabilize

19. www.mmmlaw.com Stabilize To provide such medical treatment of the condition as may be necessary to 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 facility

20. www.mmmlaw.com Stable for Discharge Individual is “stable and ready” for discharge when “within reasonable clinical confidence, it is determined that the individual has reached the point where his/her continued care, including diagnostic work-up and/or treatment, could be reasonably performed as an outpatient or later as an inpatient, provided the individual is given a plan for appropriate follow-up care as part of the discharge instruction.”

21. www.mmmlaw.com Transfer Movement (including discharge) of an individual outside a hospital’s facilities at the direction of any person employed by or affiliated with the hospital, but does not include such movement of an individual who: A. Has been declared Dead B. Leaves the facility without the permission of any such person

22. www.mmmlaw.com Restricting Transfers If an individual has an EMC and has not been stabilized, then the Hospital may not transfer the individual unless: (A) Patient request in writing to be transferred to another facility, after being informed of the risks; (B) A physician writes that the medical benefits expected from treatment at another facility outweigh the risks to the individual; (this may also be performed by a qualified medical person with the consultation with the physician. (The written transfer document shall contain a summary of the risks and benefits considered in making the decision to transfer); and (C) It must be an appropriate transfer.

23. www.mmmlaw.com Appropriate Transfer 1.Transferring Hospital provides medical treatment within its capacity which minimizes risk to patient; 2.The receiving facility: 1.Has capacity (space and qualified personnel) 2.Agreed to accept the transfer of the individual to provide appropriate care. 3.Transferring hospital send to the receiving facility all medical records related to the EMC and the name and number of on-call physician who failed to appear with a reasonable time to stabilize 4.Use of qualified personnel and transportation equipment

24. www.mmmlaw.com Reverse Dumping Hospital with specialized capabilities or facilities (such as burn units, shock-trauma units, neonatal intensive care units, etc.) may not refuse to accept an appropriate transfer if: The individual being transferred requires such specialized capabilities or facilities AND The recipient hospital has the capacity to treat the individual.

25. www.mmmlaw.com Additional Notes from Final Rule and Interpretive Guidelines On-Call Panel Clarification

26. www.mmmlaw.com Call Panel Requirements ED call panel must “best meet needs of hospital’s emergency patients... In accordance with resources available to hospital, including availability of on-call physicians. But written policies and procedures must provide that emergency services are available to meet the needs of patients with emergency conditions and respond to situations in which a particular specialty is not available or on-call physician is unable to respond.

27. www.mmmlaw.com Call Panel Requirements (cont’d) Elective Surgery and Simultaneous Call On-call physicians may schedule elective surgery while on call and may be on-call simultaneously at more than one hospital, but should have planned back-up. When physician on simultaneous call, all involved hospitals must be aware of on-call schedule at each hospital Many hospitals may need formal back-up call panels. Smaller hospitals may not need to arrange back-up panel. May enhance compliance by entering into transfer agreements.

28. www.mmmlaw.com Call Panel Requirements (cont’d) ED may refer patients to on-call physician’s office only if: Medically appropriate AND Physician’s office is part of hospital owned facility (shares Medicare number) located on hospital campus. Use of telemedicine by on-call physicians May be utilized to evaluate or treat only when not possible for on- call physician to physically assess patient due to patient’s geographic location. Ex. Individual presents to originating hospital located in rural health professional shortage area or county outside of metropolitan statistical area.

29. www.mmmlaw.com Call Panel Requirements (cont’d) Selective call is a violation Physicians who refuse to be included on call panel but take calls selectively for patients with whom they may have an established doctor-patient relationship with may violate EMTALA. Hospital who lets physician selectively take call would be in violation of EMTALA. Physician’s failure to respond to call Physician may violate EMTALA if fails to come to hospital, even if hospital arranges for another physician to assess patient. Response Time Hospital policies must set forth specific response time in minutes.

30. www.mmmlaw.com EMTALA – Module 1 42 U.S.C. §1395dd If you have any questions or concerns regarding this course, please contact: Morris, Manning and Martin, LLP Michele Madison 404-504-7621 mmadison@mmmlaw.com