EMTALA Deskbook Now On Amazon16 January 2012
The EMTALA Deskbook is now available on Amazon.
Contents include:Read More
EMTALA DESKBOOK 2012 Release Update16 December 2011
The EMTALA Deskbook 2012 will be released on Amazon in early January 2012, according to Stephen A. Frew JD, publisher of the Medlaw.com website.
Frew advised readers of his Medlaw.com E-Bulletin:
In October, my daughter released a compilation of legal resources for EMTALA in digital format. At the time I indicated that the EMTALA Deskbook 2012 would be released early in 2012. I am now able to announce that it should appear on Amazon in the first week of January.
We are holding a pre-publication sale on the book to allow us to give our readers a special 25% discount on orders received during December. All books will ship in early January.
We also promised the digital purchasers that they would be given a credit on the purchase of the printed version of the book, and we are honoring that promise with a special order link on our website.Read More
FAQ: When can we send a patient to another hospital by private vehicle under EMTALA?16 December 2011
Under EMTALA transfers are any time the patient leaves the facility unless they are deceased or leave without permission. EMTALA cases often arise when the patient is moved, sent, or transferred to another hospital for either a higher level of care or for testing or care not available at the sending facility by private vehicle.
EMTALA Appropriate Transfer Elements
A medically appropriate transport under EMTALA is one where: there is a valid transfer certification; there is advanced acceptance; the patient consents; transport is by appropriate medical vehicle; there are appropriate medical personnel in attendance; there is appropriate life support equipment; and the medical record is sent with the patient.
Private Autos Don’t Hack It
If you do get the signed refusal, remember that you must comply with all of the other elements of an appropriate transfer.
Private vehicle movement is always a risk, so make sure that you have warned the patient against any delays or diversions in the trip and pay attention to documenting every element of compliance.
As a last caution, transferring pregnant women by private vehicles is a recipe for disaster.Read More
EMTALA FAQ: Who can complaint about an EMTALA violation?19 November 2011
Anyone can file a complaint for an EMTALA violation against a hospital with the state hospital licensure folks or the federal CMS office. If found in violation, CMS will require them to file and successfully complete a plan of correction (allegation of compliance). Following that, the Office of Inspector General can fine them up to $50,000 per patient incident. If they fail to come into compliance, the hospital can be removed from the Medicare program, which effectively renders them bankrupt. If CMS finds that a physician violated EMTALA, in the fine process, OIG can also fine the physician or bar them from working anywhere that receives federal money. The money goes to the government.
In addition, any patient or patient legal representative or heir, depending on the state law for who has standing, can file a civil suit for violation of EMTALA against the hospital. If a physician is also to be named as a defendant, they must be sued under state malpractice law, not EMTALA, although violation of EMTALA may be alleged as evidence of malpractice since it is generally the prevailing law that shapes standard of care. Any money recovered goes to the patient.
In a little used aspect of the law, a hospital harmed by another hospital’s violation of EMTALA can file suit against the violating hospital — such as, hospital A refuses care to patient A because they are uninsured and Patient A goes to hospital B where they are admitted and run up substantial bills which they cannot pay. Hospital B can sue and recover payment from Hospital A for Patient A’s bills. Any money recovered goes to Hospital B. Hospital B can also seek an injunction against Hospital A to force them to comply with EMTALA.Read More
NC Hospital Cited For CMS Violations In Death of Psych Patient From Choke Hold — UPDATE08 November 2011
NC hospital has been cited for various EMTALA and COP violations following the death of a patient when security personnel placed him in a choke hold to restrain him. The hospital failed to report the April death according to local news reports, and the incident only came to light in September after the State Medical Examiner reported the death to police as a possible negligent homicide. The family has filed a lawsuit over the death.
The hospital was also cited for EMTALA violations for instances where patients left without being seen after extended periods of time that exceeded the hospital policy, a local reporter stated. The hospital personnel did not attempt to get written refusals of care and in some instances ordered patients requesting care out of the facility when they complained about the delays, but were seen and admitted subsequently at another facility, the reporter stated.
[See prior related post below]Read More
Washington Suits Seeks To Block State Medicaid Plans That May Violate EMTALA and BBA08 November 2011
The Washington state chapter of the American College of Emergency Physicians has filed suit in state courts to block a proposed Medicaid rule that would not pay for more than three ED visits per year that were deemed “non-emergencies”. Among the listed “non-emergencies” was chest pain and other “true emergencies” according to WACEP. The ban would be based on final diagnostic codes.
The state suit alleges a number of state procedural issues, but only vaguely mentions issues that are more federal in nature, such as the issue whether states can be sued for violating Medicaid federal laws and regulations. That question is pending in the US Supreme Court.
This is “deja vu all over again”.
In case the states have forgotten, there is a little matter of EMTALA requirements that pre-empt state laws that conflict, and hospitals cannot simply do what the states want them too. A state that gets a Medicaid waiver does NOT have a waiver from the Balanced Budget Act or from EMTALA. Over the years, some states have taken the position that “they are not requiring hospitals to violate EMTALA, they simply are not going to pay them if they don’t.”
What the plans don’t admit to is that they know they are out of line based on years of prior warnings from Washington. They know, also that they don’t have an EMTALA waiver – because EMTALA applies to the hospital, not the plan. But in several states, hospitals have been told that the plans have “EMTALA waivers” to try to get hospitals to shut up and go along with the plan. Groups protesting the Medicaid demands report that they have challenged by the plans to “just try and do anything about it.”
The real issue is BBA
The new approach is not new at all. In the 90′s hospitals were getting crushed between managed care plans and Medicaid on one side and EMTALA on the other, and CMS was leaning on the states and citing hospitals left and right for EMTALA violations. The result was the Balanced Budget Act in 1998. Now, unless they slipped a repeal in Obamacare that I missed …after all, it was 2300 pages…it is directly applicable to this circumstance.
The rules that came out of that law were:
1. Managed care plans and Medicaid must pay for ED visits based on the “prudent layperson” standard of the presenting complaint. If a prudent lay person, given all the circumstances, would have thought it necessary to come to the ED for care, the plan had to pay REGARDLESS OF THE FINAL DIAGNOSIS CODE. (Certainly chest pain meets this standard.)
2. It banned “pre-authorization” requirements for plans and Medicaid.
3. It imposed a $25,000 per patient visit violation on managed care plans and Medicaid for violating the rules.
There is no information readily available on what actions OIG has taken to enforce the BBA in recent years.
ED Documentation Problem
ED documentation frequently result in not getting paid under the prudent layperson standard because documentation of “ear ache”, for instance, often omits details about attempts to see a doctor, deterioration, and associated complaints. This is frequently the result of the use of the shortest possible statement of chief complaint, lack of a detailed history, no observations about pain and other conditions on presentation, etc.
It is further complicated by short, judgmental documentation by triage nurses and ED physicians who would rather vent on “unnecessary use of my ED” than get paid. The less important the visit appears in the documentation, the less likely that the prudent lay person standard will be met.
Grumpy about EMTALA
I don’t mean to be grumpy about EMTALA, but I have seen this go around the same block several times, and it is getting a little boring. It isn’t even bizarre enough to be funny any more.
What is distinctly NOT funny is that hospitals and providers seem to be the only ones who get nailed for EMTALA violations and for the slightest disputed error on a bill, but the rules don’t get enforced on the states and on the plans which are often responsible for inducing more violations and mistakes than the industry is.
Fair is fair, and CMS and OIG need to start enforcing BBA with as much gusto on states and Medicare plans as they show enforcing EMTALA.Read More