FAQ: The On-Call Did Not Come In And Wants Them Sent To The Office Tomorrow -- But Then Won't See Them Without Cash or Insurance. Does This Violate EMTALA?

THE VERY LONG ANSWER:

This is one of the top three questions that I get, and it is one of the most controversial -- here's why:

CMS enforcement varies from region to region and from state to state. In one region, the answer will be different based on WHICH EMTALA enforcement person you talk to.

As always, my approach is watch what the Regional Office DOES not what they say. Why? Because every region bases citations on a "case by case" analysis -- which means you have to watch for patterns to help determine what is likely to happen in reality. The Rules are not clear in many cases, but often the patterns are much more useful.

SCENARIO FOR DISCUSSION --

Although any type of patient or any specialist may have similar issues, we will use the orthopedic patients as the example, as they are by far the most common source of complaints:

Patient has fracture. The on-call is called and advises to splint and send them to the office the next day. When the patient arrives, they are uninsured and the on-call will not see them.

The first question is whether this is EMTALA at all, and the answer is that most CMS investigators would consider it EMTALA at least until they complete the investigation -- that means you are going to get an EMTALA visit. This in turn means a complete EMTALA review of this incident, similar cases, and a broad range of other EMTALA issues.

POINT #1 -- Just getting a visit makes it much more likely that the feds will find "something" or multiple "somethings" to cite you on. Visits are NOT "good" things.

WAS THE ON-CALL ASKED TO COME IN?

The next question is whether or not the on-call was asked to come in to see the patient.

POINT #2 -- If the physician was asked to come in but refused and requested that the patient be sent to the office the next day, there is an ON-CALL VIOLATION in most instances which means we also have a potential hospital violation.

POINT #3 -- If the ED physician caved in and agreed to send to the office after asking the on-call to come in, then we have a probable ED PHYSICIAN VIOLATION for an improper transfer and a hospital violation for improper transfer and on-call violation.

IS SPLINTING "STABILIZATION"?

Some ED's cast simple fractures, while others tend to only splint and send the patient to the orthopod later for casting.

CMS has cited both practices. It is HOW its done, more than WHAT the approach is.

POINT #4 --If the fracture is cast or splinted but should have been seen by an orthopod, the the ED Physician and Hospital may be cited for failing to call in available specialists. This is less prevalent in the over-all scheme of citations, but it does happen.

The more common citation is for sending the patient out splinted when CMS determines that definitive care should have been rendered in the hospital. Typically, this involves our SCENARIO refusal when the patient presents at the orthopod's office.

The definition of "stable for discharge" is that the patient's emergency condition has been "resolved". The general definition for "stable" revolves around whether there is a likelyhood that the condition might deteriorate from or during discharge or movement. You will recall that discharge is considered a transfer for this purpose.

POINT #5 --If the issue of further evaluation is involved, CMS will almost always consider the patient requires this evaluation in the ED setting.

POINT #6-- Sending a patient for prompt or immediate specialist review IMPLIES that the risks to the patient have NOT been RESOLVED.

POINT #7 -- Splinting, by the fact that it is considered temporary and an interim measure, is often viewed as
incomplete treatment by CMS and not sufficient to be considered "stabilization," unless there are contra-indications for more definitive care at the time (other than the fact the on-call doesn't want to come in.)

WHAT ABOUT THE "PLAN OF CARE EXCEPTION?"

CMS rules talk vaguely about it being permissible to discharge for out-patient care in appropriate ircumstances. They do not give "safe harbor" guidelines. My personal observation is that CMS is more likely to accept this approach when

1) Necessary testing has been done to confirm that the injury is of a limited and minor nature.
2) Casting has been performed in the ED or is documented as contra-indicated
3) The specialist has agreed to see and manage the patient
4) Specialty care is not needed on an expedited basis (i.e. not "go now", "see tomorrow", "when office opens in AM" etc.) 5) Good documentation shows elements of MSE, stabilization, and plan of care

POINT #8 -- To rely on the Plan of Care exception, the specialist would have to honor their agreement to manage the patient, and could not refuse them for financial reasons. Since that did not happen in our scenario, CMS is unlikely to consider this exception.

POINT #9-- CMS routinely cites for situations where pain, limited function, etc. is not addressed. They specifically cite for failure to suture lacerated tendons, even though many surgeons indicate that such issues CAN be addressed even two weeks later.

The question is not whether it CAN be addressed later -- the question is whether the best-paying VIP patient is required to wait or whether the on-call comes in and sees them and repairs their injury NOW.

EMTALA is generally seen by CMS as advocating prompt, in hospital, definitive care without regard to payment source or ability.

POINT #10 -- Under the "Disparate Treatment" standards of the courts, it is an EMTALA violation to process the patient differently based on means or ability to pay. If Joe VIP would get the care now, EMTALA applications mandate similar care for all.

Remember, however, even if the on-call uniformly refuses to address issues in the hospital setting, EMTALA is still likely to find that unacceptable.

WHAT ABOUT THE MEDICAL STAFF BYLAWS?

CMS will find violations if the bylaws require the on-call to see the patient and render care without regard to means or ability to pay and the physician turns away the patient. These provisions occur in a minority of bylaws, but are becoming more common in response to the scenario we are discussing.

If there is no bylaws mandate, the hospital and the ED physician are left back at the decision points of

a) Should the on-call come in and see the patient -- and if so,then that is what should happen;
b) Is it the best care for this patient to send them for office care if I have reason to believe that they will be turned away for lack of money-- and if not, then we are back to "a", again.

WHO IS THE MOST LIKELY TO GET CITED?

Without a doubt, when anything goes wrong, the hospital will get cited.

In 90% of the cases like our scenario, the ED doctor gets faulted for the violation, as well, for inadequate evaluation, improper discharge, failure to call in the on-call or sending to the office.

As long as the on-call was not specifically asked to come in and refused (as opposed to weaseling out of it) or there is not a bylaw, they caused the violation but are not typically cited for it.

SO WHAT IS THE BEST SOLUTION TO AVOID CITATION?

There is no "one solution fits all" answer, but the over-all approaches that have the fewest citations are:

1) Testing, evaluation, and casting of minor fractures is done in the ED
2) More involved fractures require the specialist examine the patient in the ED
3) Definitive care of complex fractures, pain management, and tendon repairs are done prior to discharge
4) Specialists who are asked to come in are NOT allowed to substitute their office as the treatment site
5) Medical staff rules that require and enforce ED follow-up visits without regard to means or ability to pay
6) (Less desirable) Referrals for follow-up care are left to the patient rather than arranged by the ED -- list provided of area specialists.
7) Patients returning to the ED due to refusals due to finances are provided coverage via the on-call system

POINT #11 -- EMTALA is complaint-driven, and one of the most common complaints is the refusal of care in the orthopod's office. It is a high-risk scenario.

THESE AND OTHER POLICIES AND PROCEDURES WILL BE PART OF THE EMTALA POLICIES AND PROCEDURES BOOTCAMP JULY 12 AND 13, IN SAN DIEGO, CA.