16 Tips for Compliance Officers Regarding EMTALA

The Department of Health and Human Services (HHS) Office of Inspector General (OIG) has identified the Emergency Medical Treatment and Active Labor Act (EMTALA) as one of the high-risk areas in their compliance guidance documents. In the OIG’s Spring 2018 Semiannual Report to Congress (Report), the OIG references its enforcement actions related to EMTALA cases. The cases were resolved during the reporting period from October 1, 2017 to March 31, 2018. EMTALA, also known as the “patient dumping statute,” is a statute designed to prohibit hospitals from denying emergency care, including psychiatric care, to patients and ensure patient access to appropriate emergency medical services. EMTALA applies to Medicare participating hospitals with emergency departments (ED). Under EMTALA, Medicare participating hospitals with EDs must comply with the following three obligations: 1) All patients who come to the ED must be provided an appropriate medical screening examination to determine whether or not an emergency medical condition (EMC) exists; 2) The hospital must provide treatment to stabilize the medical condition or appropriately transfer the individual to another hospital; and, 3) The hospital must comply with restrictions on transferring unstable individuals. EMTALA violations may result in civil monetary penalties of not more than $50,000 (or not more than $25,000 for hospitals with less than 100 beds) for each violation. Although the penalties under EMTALA are significant, many hospitals have found that private tort litigation by patients and reputational damage often create a greater risk. Therefore, most EMTALA cases continue to be resolved through settlement agreements with the OIG.

OIG Cited EMTALA Regulation Cases

EMTALA enforcement and regulatory actions occur on a regular basis, although relatively few cases rise to the litigation level. In the Report, the OIG discusses its ability to impose administrative sanctions through various federal laws, such as the Civil Monetary Penalties (CMPs) Law. During the reporting period, the OIG completed cases involving more than $35.5 million in CMPs and assessments. From the CMP Law cases that the OIG resolved, a few were pursued under EMTALA. The OIG cited the following two cases related to EMTALA:

1. Cambridge Health Alliance (CHA)
   • CHA paid $90,000 for its alleged failure to screen a patient after she presented on hospital property in medical distress. The OIG alleged that the patient was experiencing a severe asthma attack and was unable to gain entry to the ambulance bay doors. She collapsed on an adjacent bench. CHA’s alleged negligence in its search for the patient after her collapse resulted in the patient’s admission to the hospital in grave condition. The patient died six days later.
2. Piedmont Newton Hospital (PNH)
   • PNH paid $52,414 for its alleged failure to provide an appropriate medical screening exam, stabilize, and, appropriately transfer a patient to another hospital. The OIG alleged that the patient arrived complaining of chest and abdominal pain. PNH’s ED physician conducted blood tests and learned that the patient had undergone dilation and curettage two days earlier. The ED physician ordered chest x-rays which indicated bowl perforation, then consulted with the on-call surgeon who recommended transferring the patient back to the hospital where the patient underwent the dilation and curettage procedure. The patient arrived at the other hospital in septic shock and near respiratory collapse and died later that day.

EMTALA Compliance Tips

Given the history of EMTALA cases, compliance officers should ensure that audits of patient transfer paperwork are conducted. The audits can confirm that all transfers of individuals without stabilized EMCs are initiated either by a written request for transfer or physician certification regarding the medical necessity for the transfer. In addition, compliance officers should take the following actions:

1. Verify that hospital policies and procedures specifically address EMTALA compliance;
2. Ensure that transfer policies and arrangements are being followed;
3. Verify that specialists are on staff to meet the screening and stabilization requirements;
4. Review the hospital’s inpatient capabilities for stabilizing emergency patients;
5. Confirm that whistleblower protections are in place and that the hospital’s policies prohibit retaliation against whistleblowers that report potential violations;
6. Ensure that staff members are not requesting payment prior to screening patients;
7. Conduct a medical record audit for screening and transfers;
8. Verify that a method exists to internally report and address potential violations;
9. Ensure that the hospital maintains a central log for disposition and compliance with legal requirements;
10. Verify that the hospital maintains a transfer request log to capture required information;
11. Review on-call policies and contracts to ensure the ED has adequate coverage;
12. Confirm that the physician on-call list reflects coverage of services available to inpatients;
13. Review triaging and screening protocols and training;
14. Verify that proper patient triaging procedures are followed;
15. Verify that all physicians arrive at the hospital when requested and are in compliance with the timeframes specified in hospital policies; and,
16. Ensure that treatments are timely and not delayed because of patient registration.