All consulting, publications, speaking, and educational services of the Publisher, Stephen A. Frew JD, are available exclusively through:
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Information is provided here soley as a convenience for users of this site. See the Terms of Use for full details of restrictions on the use of this site.
EMTALA Consulting
As a long-stianding expert in all aspects of EMTALA, Stephen A. Frew JD, is available to provide consulting services to hospitals, physicians, and their attorneys.
Specific services include:
- Pre-Audits and Risk Assessments
- Policy and Procedure Development
- Plans of Correction for EMTALA Citations
- Onsite Compliance Implementation
- Medical Staff Presentaitons
- Litigation Consultation With Counsel
- HIPAA, Data Breach, and ID Theft Consulting
Experienced assistance in policy and procedure development, incident risk management, and staff training on HIPAA, “Red Flag”, and Data Breach compliance/risk management.
- Electronic Medical Records and New Technology Risk
- Risk management advice and policy and procedures development to help limit the risks inherent in the new technologies of Electronic Medical Records, social media, new electronic media technology involving medical providers.
Hospital, Physician Practice, and Clinic Risk Consulting
Onsite and remote risk services for hospitals, physician practices, and clinics include:
- Policy and procedures reviews and development
- Onsite risk assessments
- Medical records reviews for compliance and risk issues
- Risk incident advice
- Risk management education presentations
FQHC Health Center Risk Management
On-site and remote services are available for:
- Policy and Procedure review and development
- Risk management and quality plans
- Incident review and advice
- Risk management education for staff and Medical Staff
Public Speaking and Educational Presentations
A limited number of public speaking and educational presentation dates are available each month for on-site presentations at your facility. Mr. Frew is also available for teleconferences and webinar events.
I would like to speak with someone regarding Mr. Frew’s availability to provide an onsite educational presentation to our Medical Staff about EMTALA compliance. You may respond to this email or to my office telephone at xxx-xxx-xxxx. Thank you.
Question: 38 y.o female presents to rural ED in Labor. She states that her EDC is 21 days from now .Patient arrives in the ED with a midwife who states that they have been at home pushing for the last four hours but the child will not come out. The last two deliveries had to occur via C-section for failure to progress. The rural hospital does not have any OB services , they do not have a fetal monitor, they not have it they do not have a doppler to check for fetal heart rate and the closest facility with an obstetrician is 15 minutes away. The ED physician immediately contacted the nearest obstetrician who says to send the patient to be ambulance to their OB hospital stat. The patient obviously needed a higher level of care than this rule hospital could provide. The receiving facility accepted the patient. All paperwork was transported with the patient and reports were given to the OB staff at the receiving facility. Is this am EMTALA violation because a patient in labor was transported?
Assuming the paperwork was done correctly –i.e. the risks and benefits were properly entered demonstrating the need for transport — the fact that the patient was in labor is not an EMTALA violation. EMTALA does not prohibit transports per se, it simply sets up the rules for how to make a justifiable transport.
We have a walk in clinic and our practitioner that runs it sends patients by ambulance to ER in other towns. some for strokes, some for cardiac. He has the patient sign the Transfer form and gets an accepting physiciab. Is that all that needs to be done?
Assuming that the walk-in clinic is hospital owned and operated, it would be regulated by EMTALA. If it is a non-hospital-owned clinic, it would not be regulated by EMTALA. Going with the assumption that this is hospital owned and operated, you would be required to follow EMTALA requirements for MSE just as if it were an ED. Transfer rules require: Physician certification, statement of risks and benefits, written patient consent, advanced acceptance, transport by ambulance, sending of medical records of visit. There are a variety of details on each requirement — see pp 275-320 EMTALA Field Guide 3rd Edition.
I work for a Medicaid HMO. We have a physician group who says that 42CFR 438.114.d. which says
“…MCOs… may not limit what constitutes an emergency medical condition on the basis of lists of diagnoses or symptoms. ”
We, like most state Medicaid programs, do use a pre-approved list of diagnoses which are automatically approved. For those diagnoses not on the list, we ask the providers to send in the documentation to review and then have an RN/physician review the chart to determine if we think the patient had an emergency. About 50% of the time, we do agree that it was an emergency.
Is this process that we use against EMTALA law?
The 1999 Balanced Budget Act imposed the prudent layperson standard on EMTALA visits. This requires that the MCO must pay for any visit that meets the standard. The final diagnosis cannot be used as the final standard for payment. The prudent layperson standard is that payment must be made for any visit and MSE, including testing or consult, where a prudent layperson would reasonably conclude that the presenting circumstances and complaint required emergency medical assessment. This means, in my opinion, you are not wrong to automatically approve a list of diagnoses, but you cannot automatically deny visits that do not result in a diagnosis on the pre-approved list. The visit must be assessed on the presenting complaint and its possible implications — i.e. if someone comes in with complaints of epi-gastric pain and shortness of breath in a 57 year old male while shoveling snow, the visit needs to be paid for, even if the final diagnosis is heartburn from too many bratwursts. Similarly, a parent with a child crying from pain of unknown causes and not responding to tylenol at 1 am and doctor’s office is closed would be a potential emergency to most people and justifies payment under the prudent layperson standard. Please note: EMTALA requires that providers render care without calling in for pre-approval or to confirm coverage. Asking for copies of the chart for review after the fact would not violate the BBA, but not applying the correct standard in review of that chart would. The BBA applies to both Medicaid and private payers.
Small hospital without psych services is alerted ambulance is on its way with a psych patient. Small hospital tells ambulance to go to another hospital which has a psychiatric service. Ambulance diverts to the other hospital. EMTALA issue?
Yes. They cannot divert an ambulance unless they are on formal diversion. You cannot be on diversion for a specific type of patient such as psych on a routine basis. That is not diversion, that is patient screening and may be cited as an EMTALA violation.
ED on diversion except for trauma (designated Level 2, stroke, (designated stroke center & STEMI . All other patients denied. Is an EMTALA violation potential?
EMTALA does not have any diversion standards, except to state that diversion must follow a written policy (pretty much complying to the letter)– and preferably a community wide policy such as a state, county, or city policy or procedure — and may not turn away any presenting patient, even if a diversion order was given for that patient. CMS is slightly more likely to accept limitation of services under a declared disaster, but again you must be following your disaster plan. National disaster declarations allow for formal waiver of certain EMTALA requirements, but typically take many hours or days to be issued. Please note that any ambulance that crosses the outer boundary of your campus with a patient has PRESENTED for EMTALA purposes and may not be diverted.
CMS has also issued guidance that forbids “parking” of patients which is delaying “acceptance” of a patient and leaving EMS caring for the patient in the hospital or in line in the driveway — remember the patient presented when they crossed the outer boundary of the campus.
Do you still publish ENLB Emergency Nurse Legal Bulletin in a print format?
That publication is from MED/LAW publishing, which is not related to medlaw.com
Transfer Call Center has been instructed to arrange transportation for all patients accepted into facility , both ED & direct admissions. This involves both ground and air transports. Is EMTALA in jeopardy if referring physician is not involved? Should the referring facility make those transport arrangements based on referring physician decision?
EMTALA allows a hospital to set up a system for accepting transfers as it prefers, except that the system must expedite transfers rather than delaying them. A few state transfer laws require physician to physician contact, but that is not common and is a state limitation not an EMTALA limitation. Under EMTALA, the hospital is the entity required to accept a patient by having the system in place.
Two hospital system wants to admit Ed patients from one Ed to other hospital in system to improve inpatient Medicaid admits for disproportionate use reimbursement. They want to screen Medicaid patients in hospital A ed and send to hospital B as inpatient to receive better funding at both sites. how does CMS view this lateral transfer admission process. Thank you in advance for reply.
If the two hospitals have different Medicare provider numbers, the movement is a transfer. Movement to another facility for necessary EMTALA care would be governed by EMTALA and could NOT be based on Medicaid status.
Is it a concern or EMTALA violation if a patient is seen in the ED, for example for a fractured arm, splinted and told to go to an assigned (was on call) Ortho physician the next day. The next day the patient goes to the orthopedic office and is refused to be seen because he has no insurance or funds at the time. Your opinion please and thanks.
CMS regions differ on splinting fractures, but all require the on-call to come in if there is displacement, fx in growth plate or joint, nerve involvement, fx long bones, tendon injury, neck, spine, skull, open fx, ambiguous x-ray, etc.
On the issue of sending to the office and subsequent refusal by the ortho the answer to your question first depends on medical staff bylaws. Many hospitals require the physician to see the patient, in which case the refusal is an EMTALA violation. If the hospital does not require the on-call to see the patient for a follow-up visit, CMS has cited the ED doc in some (but not all) cases for failure to call the on-call doc in to see the patient in the ED.
Because the practice of orthopedists to turn away ED follow-ups without advance payment is so common, it is a frequent source of EMTALA complaints. Complaints, in turn, typically result in CMS visits, and visits typically result in citations. These EMTALA citations may not be for the specific complaint that brought them there, but once there, they tend to find things to cite.
I consider it a HIGH RISK practice to send patients to the ortho’s office if they have a history of turning away ED patients based on ability to pay.
I had purchased the Kindle edition of the EMTALA Field Manual, 3rd Edition, in 2015. I want to download the new 4th Edition, but even when I use the link and go thru the Amazon purchase process to download it for free, it constantly reverts to the 3rd Edition. Even deleting the 3rd Edition from my Kindle Acct failed to correct this problem. I’m sure I’m not alone in this problem. Please help.
I found the source of the problem and have corrected it, and am awaiting confirmation from Amazon that they have activated the correction. I will notify you immediately on confirmation and will extend the free download period.
It now appears AMAZON has corrected the problem. I have extended the free download through Sunday June 23.
EMTALA violation?
Hospital A has patient in ED requiring subspecialty care that is not available at Hospital A. Transfer request is made to Hospital B where subspecialty care is available 27 miles away. However Hospital C also has subspecialty care available and is only 10 miles away. Is it an EMTALA violation to bypass Hospital C for urgent medical care?
EMTALA does not mandate which of the two hospitals you must transfer to — either meets EMTALA requirements. EMTALA requires you to transfer to a hospital capable of providing the care needed and willing to accept the patient. If the patient is Medicare, Medicare will only pay the mileage portion of the ambulance bill to the nearest minimally capable hospital, so in the example, Medicare will pay for the transport service but only pay 10 of the 27 miles if the patient is sent to hospital B — but you do NOT have to provide an ABN in EMTALA cases.
There is always the chance that sending a patient to a more distant facility could produce an adverse outcome, but that is a medical decision in each case assuming both destinations were willing or able to accept the patient. Obviously, that could be reviewed in litigation, but in my experience, CMS does not treat that as an EMTALA issue in administrative actions unless the decision is deemed dramatically inappropriate by the QIO physician reviewing the case for CMS.
Is it a violation to have an admiited patient already residing on the hospital floor to be transferred to the ED to be cared for. Example an gentleman who had hernia surgery and the developed an lieu’s and while on the floor develops very stable afib with RvR which he already has and takes metoprolol for. Shouldn’t he be transferred to another Inpatient unit that has cardiac monitoring?
The patient was admitted to the floor with an ileus and then developed a fib. They wanted to transfer back down to the ER
Generally speaking, an admitted patient should be managed on an in-patient unit. Occasionally, it may be necessary to move a patient to an out-patient area to access specific equipment or to access limited physician coverage in a timely fashion. EMTALA does not regulate inpatient care unrelated to an ED presentation.
question: We own 2 acute care hospitals of similar services, similar size, 22 miles apart. Recently we have spent quite a bit of money to build a safe, locked, area for holding behavioral health patients at one of the hospitals (Hospital B), attached to the ED, until we find an accepting behavioral health facility. Some patients are held for weeks. How do we word a policy so that it is acceptable to send a patient from Hospital A (without the safe area), to Hospital B – which does have the safe area?
The big question is whether the two facilities operate under different Medicare provider numbers or the same number. If they operate under the same number, you would be able to have an internal policy on when and how patients are moved for this service.
If they operate under separate provider numbers, they are treated as separate hospitals and the one with the special holding unit would be considered a higher level of care. The location without the holding unit would have to follow full EMTALA transfer procedures, including advanced acceptance and certification of transfer, to move the patient to the other facility.