EMTALA Update

Stephen J. Frew, JD
medlaw.com

National Hospital Survey Suggests Wide-Spread EMTALA Violations at the Ed Triage Desk

Buried among interesting statistics about rising ED visits,lower emergent rates, fewer hospitals, and longer waiting times, are some line items that should ring alarm bells for EMTALA compliance in the results of the National ED survey released Monday by CDC.

Among the results are:

More than 29.6 million visits to the ED were not triaged or records of triage were not made. CMS routinely cites hospitals for failure to triage or failure to document triage unless the patient were immediately seen by the physician. Failure to follow the hospital's own triage policy, inadequate triage record, or failure to document triage categories are common citation grounds.

More than 1.8 million patients walked out of the ED without being seen. LWOBS cases have resulted in a high rate of citation in recent years based on failure to appropriately document the disposition.

If the hospital is aware that a patient is leaving, staff must obtain a written refusal of care from the patient that includes a detailed statement of risks. If the hospital is unable-- due to refusal to sign or being unaware of the departure, to get a signed refusal-- the record must document reasonable efforts to obtain the refusal or the impossibility of obtaining the refusal.

Another high-risk aspect of the LWOBS patient under EMTALA is the issue of whether the patient was appropriately monitored while awaiting care. CMS will look at the appropriateness of the triage category assigned, the frequency of noted re-evaluation, and the delay for MSE as an issue of constructive denial of care.

Patient disposition of LWOBS or AMA targets the record for review on ED investigations.

HAVEN'T LEARNED YET ?--

Perhaps the most disturbing line item is that the survey reported 332,000 patients were "triaged-out" or referred away at triage without MSE. This is the classic EMTALA violation that was common in the early days of EMTALA enforcement. Since that time, it has diminished as a common citation. This survey figure, however, suggests that we will see a resurgence of CMS activity in this area.

This result could be considerably higher in reality, as many hospitals do not log, keep records, or report in any way patients who come into the ED but leave without completing triage, registration, and MSE. This common, but improper, practice could raise the actual "triage-out" figures several fold.

THIS IS JUST THE REPORTED DATA

If one considers that adequacy of documentation is a common source of EMTALA citations, it is easy to see where many more visits violate EMTALA than are revealed in these figures. It is also probable that self-reporting minimizes violations, so the actual rates could be disguised.

This compares rather starkly with the self-assessment of providers in our own 2001 website survey where more than 80% of respondents reported that they were in compliance with EMTALA. Either our website readership responders are well above average (I would like to think this site aids in effective compliance) or they do not realize how pervasive these threshold violations are.

OTHER TIME ELEMENTS

Using the definition of Emergent to indicate a waiting time window of 0-15 minutes to see the MD, the mean waiting time to see the physician for emergent patients was 23.9 minutes. With an adverse outcome or CMS visit, a hospital ED just meeting the mean would would be potentially at risk for failure to meet written standards or industry standards of care. Assuming that many of the patients were actually seem in less than 3 minutes, that suggests some other emergent patients were perhaps not seen for 40+ minutes and would pose very large risks for civil litigation or regulatory enforcement.

Average waiting time for non-urgent visits jumped 33% from 1997 to 2000, and probably have climbed even higher by this point. The mena waiting for this group jumped from 51.0 minutes to 67.7 minutes.

MORE INFORMATION

This report offers valuable bench-marking information to assist ED management and risk managers assess where the hospital operation compares to other hospitals and where they may be vulnerable to criticism. It also highlights opportunities for risk management, quality assurance, and compliance initiatives to preemptively address unfavorable findings from the comparison.

The full text of the report (35 pages) is now available on our website at www.medlaw.com/edreport.pdf.

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