In the preceding segment, CMS brought up the topic of “stability”, and they go on in this segment to make it clear that the situation with stability has never been based on “clinical stability” but upon the whether or not the patient was at risk to deteriorate from or during transfer or discharge.
42 CFR 489.24(d)(4) prohibits a hospital from seeking, or directing an individual to seek, insurer authorization for screening or stabilization services until after the hospital has provided the MSE and initiated stabilizing treatment. In light of the Affordable Care Act provisions (see above) that require many insurance issuers to cover emergency services without prior authorization, CMS expects there to be fewer cases in which a hospital may be asked to seek prior authorization.
Further, in accordance with 42 CFR 489.24(f), a hospital with specialized capabilities required by an individual protected under EMTALA must accept an appropriate transfer of that individual, if it has the capacity to do so. Recipient hospitals may not first inquire into the individual’s ability to pay or whether a third-party payor has authorized the transfer or admission.
o It is important to note that under EMTALA the statutory definition of an individual’s EMC being “stabilized” does not necessarily equate to an individual being clinically stable. As defined in the Social Security Act (“the Act”) at §1867(e)(3)(B) (and the regulations at 42 CFR 489.24(b)), the term “stabilized” means, with respect to an EMC, “that no material deterioration of the condition is likely, within reasonable medical probability, to result from or occur during the transfer of the individual from a facility, or, with respect to an emergency medical condition described in paragraph (1)(B), that the woman has delivered (including the placenta).”
The similarity of the terms “clinically stable” and “stabilized” appears to cause confusion among hospitals, practitioners and other hospital staff. It is not uncommon for practitioners to find that an individual has become “clinically stable,” often understood to mean the normalization of the individual’s vital signs, and then conclude that the hospital’s EMTALA obligation has ended. However, if the EMC has not been stabilized, as that term is defined above, EMTALA continues to apply. For example, a patient diagnosed with appendicitis might have relatively normal vital signs, but is still in need of surgery, and therefore continues to have an EMC that has not been stabilized.
Furthermore, many practitioners and some third-party payors seem to assume that if an individual can withstand the risk of a transfer, then that means the individual has been stabilized and the hospital’s EMTALA obligation has ended. This also is not necessarily the case. This mistaken assumption can be reflected in the commonly used term “stable for transfer.” “Stable for transfer” is not a term used in EMTALA, and it is not necessarily equivalent to the term “stabilized,” as defined for EMTALA purposes. Use of this term can, therefore, be very misleading.
For example, an “appropriate transfer,” as discussed at Section1867(c) of the Act and in the regulations at 42 CFR 489.24(e), assumes that the:
• Individual has an EMC that has not been stabilized;
• Hospital lacks the capability or capacity to provide stabilizing treatment; and
• Benefits reasonably expected from the provision of appropriate medical treatment at another medical facility outweigh the increased risks resulting from effecting the transfer.In such a case, although the individual may be “stable for transfer,” he/she nevertheless has an unstabilized EMC, and remains protected under EMTALA before, during and after the transfer. Therefore, it would not be appropriate for a hospital to seek prior authorization
COMMENT: Several areas of misapplied application of the stability rule have often resulted in stabilization citations:
1. A patient has an emergency medical condition (EMC) and is deemed unstable until the MSE has been completed and proves that there is no EMC within the differential diagnosis.
2. If a patient has to be transferred for evaluation to determine or for testing whether an EMC exists, the patient is deemed “unstable” and is an EMTALA transfer because the MSE has not been completed until all necessary specialty evaluation and testing has been completed, per the definition of a medical screening exam.
3. If a patient is going to a higher level of care that cannot be provided at hospital 1, it should be handled as an EMTALA transfer whether or not the provider thinks the patient is stable. If the transfer requires oxygen, intravenous fluids, medications, paramedics or other services to maintain their condition or prevent deterioration, they are virtually by definition “at risk” or else the services are not medically necessary.
See part 4