SANE (Sexual Assault Nurse Examiner) programs have spread across the country to reduce the trauma from sexual assault, gather evidence to help prosecute sexually violent individuals, and provide support for the victims of sexual assault. Questions I have received from several hospitals recently, however, indicate that many hospitals are not aware of how the SANE program legally fits with EMTALA and various state laws and how EMTALA applies if rules conflict. Since state laws and various SANE program procedures may vary significantly, I will address some of the questions from the EMTALA perspective of the hospital with a SANE nurse on duty or on-call and also the perspective of the hospital that must transfer patients for SANE care.
Let me make it clear – Hospitals have been cited by CMS for improper EMTALA compliance in SANE cases and I have worked on some of those cases. I am also a former prosecutor, so I understand the value of the SANE program both to the patient and to law enforcement, but patient care under EMTALA preempts SANE forensics per federal law and regulations.
Q. We have a SANE nurse on duty. May the SANE nurse provide the Medical Screening Examination required by EMTALA?
ANSWER: A SANE nurse may provide an MSE if they meet the CMS guidelines and enforcement practices for MSE providers.
1.The medical staff bylaws or resolution of the hospital Board must designate those classifications of individuals who are authorized to perform MSEs;
2. Individuals should be certified by a SANE program and privileged by the Medical Staff for those roles;
3. Non-physicians should function under clear scope of practice guidelines or protocols that define when a physician must be involved to complete the MSE and necessary care. The MSE must involve necessary testing, so the SANE protocols should define what tests the SANE nurse is authorized to order and interpret in contrast to those that must be ordered or interpreted by a physician or other provider. It is not uncommon for SANE providers and physicians to coordinate their respective roles in the MSE.
Q. We only have one SANE nurse, and that nurse cannot be on-duty at all times, so the nurse is on-call with a 90-minute response time if they are not on duty. When a possible sexual assault victim comes in, our doctors want to perform the MSE rather than wait for the SANE nurse. Won’t that destroy the evidence? Won’t the police and prosecutor consider us in violation of the law?
ANSWER: EMTALA specifically preempts state and local rules and procedures that would interfere with EMTALA requirements, such as the provision of a prompt MSE to rule out an emergency medical condition as defined by EMTALA. A 90-minute delay is likely to be determined to be excessive, while a 15-minute delay might be acceptable depending on the severity of the patient’s condition at triage. In general, if a physician is available and the patient has injuries that would be promptly addressed if it were an auto accident, then the physician should provide the MSE, being careful to avoid unnecessary disruption of the evidence, but some disruption of the evidence may be unavoidable.
Q. But patients come to the hospital with police for forensic tests, shouldn’t that take priority.
ANSWER: The police may bring patients to the hospital for forensic tests, but most patients believe they are going to the hospital for medical care. The EMTALA law requires full EMTALA compliance when a patient presents on campus or within 250 yards seeking emergency medical care or under circumstances where the prudent lay person would believe they need assessment and care. The presumption under EMTALA is that the patient with injuries presented for care of those injuries. In some cases, the injuries are more severe than a typical auto accident.
Under EMTALA priorities medical assessment comes first, psychiatric assessment comes second, and forensic assessment comes third in priority – at least when it comes to CMS enforcement history.
If the patient really came to the hospital for ONLY forensic tests, EMTALA does have a mechanism to allow this. The patient may refuse MSE or medical treatment by signing a written refusal of care. That refusal must include a statement of the risks of refusing care and the potential benefits of care. If the patient refuses to sign the refusal, the hospital staff must document all efforts made to obtain the refusal of care. Law enforcement personnel do not have the authority to refuse on behalf of the patient.
Q. Our local ambulance gave an in-bound report with a sexual assault victim. Our hospital does not have a SANE nurse, so we ordered the ambulance to divert to a regional hospital that did have a SANE nurse. The ambulance brought the patient to our hospital anyway, isn’t the ambulance in violation of the law?
ANSWER: Unless your hospital is on formal diversion status, EMTALA does not allow you to divert an ambulance elsewhere. Even if you are on formal diversion, if the ambulance arrives with the patient, EMTALA requires your hospital to render full EMTALA-compliant care. That includes an MSE.
Ambulances may have special protocols that allow them to take certain types of patients to hospitals designated as specialty centers, but they generally have the option to go the nearest hospital or the hospital requested by a patient. EMTALA requires hospitals to render care within their capabilities and may only transfer by complying with EMTALA requirements. A patient may not be transferred by a hospital just because there is a designated specialty center elsewhere.
Q. Our hospital does not have a SANE nurse. May we transfer the patient for SANE care?
ANSWER: If you meet you complete the EMTALA requirements at your hospital, you may use the EMTALA criteria to justify a transfer to another facility with SANE capability. Depending on the patient condition, you may also discharge the patient (typically in police care) for forensic services off-site.
The EMTALA criteria for transfer include:
- MSE, medical care within your capabilities to stabilize the patient, care to reduce the risks of transfer if you are unable to care for the patient’s needs;
- Physician certification (that the risks of transfer are outweighed by the benefits of care reasonably expected at the destination hospital that cannot be provided at your hospital,) or a PATIENT-INITIATED request for transfer (not influenced by the hospital or anyone affiliated directly or indirectly with the hospital);
- Advanced acceptance from a hospital that is capable of providing the assessment or care that is not available at your hospital;
- Patient signed consent for transfer with list of risks and benefits;
- Transport by appropriate medical vehicle with appropriate personnel and equipment;
- Copies of medical records from visit, testing, imaging;
Q. After MSE, our physician would normally discharge the patient to the custody of the police and send them to the SANE hospital. Is that permitted?
ANSWER: The EMTALA requirements for discharge are that the full standard MSE has been provided, including necessary testing and consults, and that no emergency medical conditions are identified — If an emergency medical condition is identified, the condition must be resolved such that the patient could be discharged home without likelihood that their condition would deteriorate.
Normally, sending a patient to another hospital for further medical care or assessment would require an EMTALA transfer. Where the patient is going for forensic assessment after their condition has been resolved, transfer by police would be permitted. Full documentation would be required in the record demonstrating an appropriate MSE, necessary care, and resolution of the condition would be required. The record should also clearly indicate that the patient was discharged and they went on their own or by police to the other hospital for forensic exam.
Should a hospital that is a transfer facility to a treatment facility that offers full medical forensic examination give a patient who declines that transfer after MSE discharge instructions? If so what content should be addressed?
Thank ;you
Assuming that the transfer is for forensic purposes following discharge, discharge instructions should note the refusal and address the role of forensic examination in future prosecution and perhaps an info form on SANE and where they can go to get it. If there are open medical issues you should obtain a written refusal of transfer similar to that required for LWOBS refusing care.
If there are certified pediatric SANE’s available , would it be an EMTALA violation if they are referred to another hospital after medical screening was complete by a physician?
If the medical screening has been conducted by a physician and determines the patient is medically stable for DISCHARGE and the purpose of the transfer is for SANE forensic services, discharge and referral to the SANE location would not violate EMTALA on its face. If there are SANE examiners onsite, CMS might question why the SANE examinations were not provided during the course of the medical screening exam and depending on the circumstances, state SANE laws, and hospital policies and procedures COULD IN THEIR DISCRETION decide to cite for an incomplete medical screening exam.