EMTALA — the double threat
The Emergency Medical Treatment and Labor Act (EMTALA) was first
included in legislation known as the Consolidated Omnibus Budget
Reconciliation Act of 1986 (COBRA). It is more commonly known among
health care providers as the "anti-dumping law," since its principle
effect is to forbid a Medicare participating hospital from "dumping" or
refusing to evaluate and treat patients who present to their emergency
department due to financial status or (in) ability to pay.
The Centers for Medicare Services (CMS) utilizes the Oklahoma State
Department of Health as their survey representatives in monitoring
compliance and investigating alleged EMTALA violations. The survey
findings of the OSDH are forwarded to the CMS regional office in Dallas.
If not appealed by the hospital, the OSDH findings are deemed admitted
or uncontended by the hospital. CMS then reviews the findings and
decides one of the following: (1) No violation; (2) Past violation not
requiring termination of Medicare agreement; (3) Violation that
continues to pose immediate and serious threat; or (4) Violation that
does not pose an immediate and serious threat.
If CMS finds that the violation consists of policies and procedures
(or an absence of policies and procedures) which continue to expose
patients who present to the emergency department to further violations,
then a letter giving notice and setting a date to terminate Medicare
status of the hospital is sent out ("death penalty letter") along with
notice of the opportunity to submit a plan of correction to avoid
termination of Medicare status. If the plan of correction is sufficient
and the hospital proves to have corrected its deficiencies on follow-up
survey, CMS will lift the "death penalty."
Several hospitals have experienced the process described above and
come away breathing a sigh of relief. It appears that prompt corrective
action has exonerated the hospital and its ability to continue treating
Medicare patients is no longer in jeopardy. WRONG!
If CMS makes an initial determination that the hospital did, in fact,
commit an EMTALA violation, then, CMS forwards the information to the
Department of Health & Human Services — Office of Inspector
General (OIG) for consideration of imposing a civil monetary penalty
(CMP). The hospital now is in the precarious position of proving to an
OIG staff attorney why it would not be in the government's best interest
to exercise its right to seek CMPs in the amount of $50,000/violation
($25,000/violation if less than 100 bed hospital).
If the alleged violation is the result of poor policies and
procedures or absence of certain policies and procedures, then the
number of violations tagged on an OSDH survey could be relatively high.
For example, if the hospital does not have a policy defining who is
authorized to perform a medical screening examination pursuant to
EMTALA, then every time a clinician other than a physician screens a
patient would be a violation of EMTALA. An annual OSDH survey is likely
to sample and find multiple potential violations and tag them on their
survey findings.
Unfortunately, by the time the results of a survey reach the OIG, the
opportunity to appeal the survey findings is long expired. The OIG takes
a "guilty till proven innocent" attitude and their letter to the
hospital reads very heavy-handed.
There are several things a hospital can do to protect itself and
minimize its exposure to the penalties of CMS and the OIG:
- First, be EMTALA knowledgeable and have appropriate policies and
procedures in place;
- Second, follow the policies and procedures; and
- Finally, think seriously about challenging adverse findings on the
survey while the surveyor is at the facility. In this instance, silence
is an admission that the surveyor is correct.
The only good news to offer should you find yourself being contacted
by the OSDH, CMS and OIG due to one survey is that the individuals dealt
with have shown the ability and desire to be reasonable in their actual
handling of alleged violations. Hopefully, they will continue in that
mindset. [Information provided by Malinda Matlock, Esq., Pierce Couch
Hendrickson Baysinger & Green, Oklahoma City.] (3-19-03)
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