Study: EMTALA Violations Found 40% of Time

Violations of the Emergency Medical Treatment and Labor Act (EMTALA) were found in 40% of investigations conducted by CMS.

However, only 3% of investigations triggered fines, according to a recent study of 2,436 complaint cases surveyed by CMS in conjunction with state agencies.¹

This surprised Larry D. Weiss, MD, JD, FAAEM, MAAEM, one of the study’s authors. Weiss is clinical professor of emergency medicine at University of Maryland School of Medicine in Baltimore.

“CMS never explained why only a small percentage of supposed infractions result in fines, so I can only speculate,” Weiss says.

State departments of health almost always perform the initial investigations. The teams of inspectors almost never include attorneys.

“It is very difficult for non-attorneys to understand the complexities of EMTALA, all the regulations, and all the relevant case law,” Weiss says. “I believe inspectors often apply EMTALA inappropriately.”

It’s possible that CMS realizes that many of the supposed infractions do not merit a fine. “Also, some of the supposed infractions are minimal and do not involve any wrongful conduct or intent to violate the law,” Weiss adds.

However, the low incidence of fines might be misleading. “In every case, the possibility exists that an investigating team may want to review many cases by the same physician or many transfers from the same hospital,” Weiss stresses. Investigators can levy a separate fine for each infraction they find.

The study looked only at CMS-imposed fines. Researchers did not examine litigated cases filed by patients against hospitals — another source of possible liability. “Patients may sue hospitals for damages sustained from alleged violations of EMTALA,” Weiss notes.

Most Involve Screening

Weiss says, “No paper in the emergency medicine literature ever studied the incidence of EMTALA complaints, the distribution of the various complaints, and the aggregate outcome of these complaints and investigations.”

By far, failure to provide an appropriate medical screening examination (MSE) was the most common complaint. Of 192 settlements:

• 75% were for failing to provide screening;
• 42% were for failing to stabilize patients with emergency medical conditions;
• 15% were due to the patient’s insurance or financial status.

Timothy C. Gutwald, JD, a healthcare attorney in the Grand Rapids, MI, office of Miller Johnson, was surprised that so many EDs are still getting tripped up on MSEs.

“At this point, EDs should recognize the difference between triage and an MSE, and know what qualifies as an MSE,” he says.

However, a May 2016 survey of Sioux San Hospital in Rapid City, SD, demonstrated this isn’t always true. CMS found the hospital failed to provide timely and sufficient MSEs for nine of 32 ED patients.

“Over the years, violations have shifted from dumping patients for financial reasons to more technical compliance issues — like conducting a timely and proper [MSE],” Gutwald says.

Prevent Investigations

In Gutwald’s experience, scenarios involving complaints of severe pain and patients presenting with mental health issues are particularly tricky for EDs. It can be difficult for ED providers to distinguish between legitimate complaints of pain and drug-seeking behavior.

“It is also challenging to know when a patient who presents with mental health issues has been stabilized for purposes of EMTALA,” Gutwald adds.

He suggests periodically auditing ED charts to check for proper documentation of EMTALA compliance.

“A combination of high patient volumes and staff turnover, coupled with ineffective, infrequent training, continue to trip up EDs,” Gutwald says.

Not surprisingly, ED documentation is extremely helpful in the event someone files a complaint.

“A frivolous complaint will not get far if the medical record demonstrates a proper MSE was performed and that the patient was stable prior to discharge,” Gutwald says.

Stephen A. Frew, JD, vice president of risk consulting at Johnson Insurance Services and a Rockford, IL-based attorney, says EMTALA violations occur at about the same level today as in the 1990s. At that time, HMOs were trying to keep insured members out of the ED to reduce costs. In some ways, the same thing is happening today.

“The unabated frequency of citations can be partially attributed to financial pressures from managed care and other third-party payers to keep patients out of EDs,” says Frew, who describes EMTALA education as “still dismally low.”

Even hospitals that make staff training a top priority face many competing priorities, such as compliance with The Joint Commission’s standards. EMTALA sometimes is overlooked.

Frew used to find it counterintuitive to see repeated violations happening even at hospitals that were serious about EMTALA training.

“But the longer I have been in the business, the more apparent it is that a major factor is staff turnover,” he says.

New hires fail to understand the nuances of definitions and enforcement patterns of EMTALA at the ED’s peril.

“They respond to situations from a ‘common sense’ approach,” Frew says. “This does not conform to the highly structured EMTALA regulatory approach.”

Here are two problems that Frew sees in many EDs:

1. The failure to post EMTALA signage in each and every area as required by the regulations.

“This is the single most common — and most simple — citation I see,” Frew says. Some examples include:

• Hospitals repaint and don’t rehang signs;
• Hospitals put signs up in the ED, but not in other areas such as obstetrics;
• Signs aren’t large enough to be read clearly from 20 feet away;
• Signs are not clearly visible from all angles in the waiting area;
• Hospitals post only one sign, when they are supposed to post signs at every treatment room, waiting area, entrance, and registration area;
• Hospitals don’t post signs in the ambulance entry area;
• Other signs are viewed by CMS as conflicting with the EMTALA signs. These include copay notices, notices for self-pay requirements, current wait times, and pain medication policies. “These signs are viewed as ‘coercive’ in suggesting patients go elsewhere,” Frew explains.
• “Glance and go” transfers.

After receiving a report from an inbound ambulance, the EP believes the patient is in serious condition and needs to go to another ED.

“He or she runs out to the ambulance, takes a quick look at the patient, and orders the ambulance to go to a more distant hospital,” Frew says.

This patient has legally “presented” to the ED, according to EMTALA. But there has been no MSE (as it’s legally defined), no stabilizing care, no advanced acceptance from the next hospital, no transfer forms, no documentation, and no medical records transfer.

“In short, good intentions do not equal legal compliance,” Frew says.

2. Failure to follow hospital policies.

Frew estimates that in two-thirds of citations, the hospital has an applicable policy that was shortcut or outright ignored.

“EMTALA is a ‘zero tolerance’ regulation, as enforced by CMS,” he adds.

EMTALA explicitly requires policies and procedures, training on those policies and procedures, and an internal quality and process improvement approach to monitor and correct mistakes. Frew notices a growing trend of ED staff failing to take this seriously.

“Somewhere along the line, these folks have gotten the idea that policies and procedures are ‘helpful suggestions,’” Frew says.

Many times, citations can be traced back to somebody with this lax attitude.

“They do not seem to understand or care that policies and procedures are the criteria that they will be held to in compliance enforcement and malpractice lawsuits,” Frew says.

REFERENCE

1. Zuabi N, Weiss LD, Langdorf MI. Emergency Medical Treatment and Labor Act (EMTALA) 2002-15: Review of Office of Inspector General patient dumping settlements. West J Emerg Med 2016;17:245-251.

SOURCES

• Stephen A. Frew, JD, Vice President, Risk Consulting, Johnson Insurance Services, Loves Park, IL. Phone: (608) 658-5035. Fax: (815) 654-2162. Email: sfrew@medlaw.com.
• Timothy C. Gutwald, JD, Healthcare Attorney, Miller Johnson, Grand Rapids, MI. Phone: (616) 831-1727. Fax: (616) 988-1727. Email: gutwaldt@millerjohnson.com.
• Larry D. Weiss, MD, JD, FAAEM, MAAEM, Clinical Professor of Emergency Medicine, University of Maryland School of Medicine, Baltimore. Phone: (410) 328-8025. Fax: (410) 328-8028. Email: lweiss@em.umaryland.edu.