Whether you are right or wrong, an EMTALA investigation can ruin your day. 

Envision this scenario in your healthcare organization:

Things seemed to have calmed down after several months of problems in the emergency department (ED). Previously, delays in hospital admissions, patient complaints, long wait times, and an increasing number of patients leaving without treatment had become commonplace.

Now, things are back to the way they should be. Then the phone rings. State agency surveyors have arrived because of a complaint about the ED. You think to yourself, “Nothing to worry about. We’ve been surveyed before and done well.”

After a few hours, you are called to meet with the surveyors who have some important findings from their investigation. When you meet with them, they inform you that they uncovered Emergency Medical Treatment and Active Labor Act (EMTALA) violations, which will have to be reported to the Centers for Medicare and Medicaid Services (CMS). You wonder how this could happen. Things have improved recently in the ED, and you’ve been surveyed before without problems.

EMTALA Surveys are Complaint Driven

Here’s why you were confused: EMTALA surveys are complaint-driven; state agency surveyors acting for CMS only conduct an EMTALA investigation (using the procedures in Appendix V of the State Operations Manual) in response to a complaint about emergency services care.

These types of complaints are less common than other patient care complaints. Nevertheless, unfamiliarity with EMTALA requirements can get a hospital into trouble, as violations of these requirements can result in civil penalties or termination of Medicare participation.

Congress passed the Emergency Medical Treatment and Active Labor Act in 1986. Since then, CMS has clarified EMTALA requirements and has published instructions about how EMTALA is enforced. For the most part, hospitals have brought their practices into compliance with regulatory requirements (e.g., having specific physician names, not group practice names, on ED call schedules; posting signs regarding accepting patients for emergencies; or having an EMTALA policy and procedure).

However, in our work with hospitals across the country, we continue to see EMTALA noncompliance when we are asked to examine ED operations. Often, risks arise because of unfamiliarity with regulatory requirements as management, physicians, and staff try to improve efficiency.

Four Common EMTALA Vulnerabilities

The following four issues are common EMTALA vulnerabilities that hospitals should address before an EMTALA survey to avoid bigger problems:

1. Whether you offer psychiatric care or not, psychiatric emergency services can get you in trouble.

When patients present to the ED with acute psychiatric illnesses, you have to provide psychiatric care, which means you need to assess the patients, rule out medical issues that might be causing the problem, and maintain a safe setting before you transfer the patients to a psychiatric care facility. Like any other type of patient, psychiatric patients need to be stabilized before they are transferred. A psychiatric evaluation and treatment should be initiated whenever possible, but especially if the patient has to wait an “extended” time for transfer.

Be careful when insurance companies direct you to use certain facilities if those facilities cannot accept the patient quickly. You cannot “hold” the patient and delay stabilizing treatment because of insurance company requirements. That patient is yours until you transfer the patient to another caregiver. Consequently, you should not delay treatment if the patient is potentially injurious to self or others. Psychiatric patients will require monitoring that is unique to their care, and guidelines used for managing medical patients may be inappropriate.

Also, make sure you understand the rules of behavioral health restraints, which are different than medical restraints. It is better to conduct one-to-one observations than to use restraints. In addition, medication should be therapeutic—it should not be administered to sedate the patient (that would be a chemical restraint). If you ever use seclusion, make sure that the patient is watched at all times, which means that the seclusion room has no blind spots.

2. Regardless of how long the patient may need to wait or how serious the problem seems to be, get the Medical Screening Exam (MSE) done early before someone gets tired of waiting.

In addition to being good customer service, it is a federal requirement that all patients who present to the emergency department should have a medical screening exam performed by a competent examiner. A long line is an inefficient means of managing triaging patients—every patient deserves to be stabilized as soon as possible. A triage nurse is not qualified to conduct the MSE unless the nurse has special competencies, the time and the space to conduct the exam, and approval from the medical staff (in the bylaws or rules and regulations) and from the hospital’s governing body.

It is important that the MSE be documented soon after the patient’s arrival to determine if an emergency medical condition exists that requires immediate treatment. Potential consequences exist if the patient walks out without having an MSE performed and complains that they were “turned away” or couldn’t get seen. Remember, triage and medical screening exams have different meanings.

3. Don’t let a doctor steer the patient somewhere else if the patient is not stable.

ED physicians have the authority to determine when an on-call specialist needs to come to see the patient in the emergency department. Sometimes, on-call physicians want to see the patient in their office. Whether the patient can be discharged and treated in the specialist’s office is a medical decision determined by the ED physician after completing an MSE and determining that an emergency condition is not present or ensuring that the emergency condition has been stabilized.

If the skill set of a specialist is required to make that determination, the ED physician can insist that the specialist come in to evaluate the patient. This is a different standard than stabilized for transfer. It is acceptable to send a patient to a higher level of care if they are only stabilized for transfer (if the ED physician determines and the patient consents to the transfer after considering the risks and benefits). However, you cannot transfer a patient to a lower level of care because that benefits only the physician, not the patient.

When the patient requires care beyond the capacity or capabilities of the hospital where the patient initially presents, the ED physician (sending hospital) will contact an ED physician or centralized call center at a hospital that can provide a higher level of care (receiving hospital) and ask for acceptance of the patient’s transfer. Problems can arise when the receiving hospital refuses to accept the patient, which sometimes occurs with physicians who are on-call for a specialty service. It is important to remind on-call physicians of their responsibilities in accepting patients transferred to the ED from outlying hospitals. If the receiving hospital staff believes non-clinical reasons may have influenced the decision to transfer the patient, then the receiving hospital may report the potential EMTALA violation to CMS afterward. The receiving hospital’s priority is first to care for the patient and accept the patient being transferred.

Knowing the EMTALA regulations for transferring and receiving patients in emergency situations is essential. You don’t want to discover in the middle of a CMS investigation that there is variation in how patient transfer decisions are made. The time to learn EMTALA regulations is before an investigation, not during.

4. Paperwork can get you in trouble. Both the accepting and transferring hospitals have to get it right.

EMTALA has well-defined documentation requirements when patients are transferred, including evidence that the accepting hospital accepted the patient, physician’s certification that the benefits of transfer outweigh the risks, pertinent medical records from the transferring site, and patient’s (or decision makers) acceptance of the risk to transfer an unstable patient after receiving risk/benefit information.

If a hospital suspects that a patient was transferred inappropriately, they must report the violation to CMS within 72 hours. Failure to report can result in termination of Medicare participation. This is a potential challenge for hospitals that have developed referral networks. No one wants to report a friendly referral source. Instead, proactively ensure that referring hospitals know what needs to be done and what paperwork needs to be sent with the patient.

What You Need to Know

Preparing for an EMTALA investigation before you have one can help you identify your hospital’s risks and address them. Compliant practices can slip without notice, especially in the heat of trying to solve daily operating problems. Periodically evaluating your EMTALA compliance can be a “stitch in time that saves nine.”


Originally written by Dr. Cary Gutbezahl, this article “Four EMTALA Requirement You Should Know … But Probably Don’t,” first appeared in Hospital & Health Networks magazine.


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