Mitigating EMTALA Risk During the Pandemic, and Beyond

The COVID-19 pandemic created chaos in emergency departments (EDs) across the United States in early 2020. Despite a relaxation of Emergency Medical Treatment and Labor Act (EMTALA) guidelines, which require stabilization and treatments for anyone arriving at a dedicated ED, complaints, and violations still persisted, leading to financial penalties and reputational harm to affected healthcare organizations. New staff and care communication technologies can mitigate this costly regulatory risk.

 

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Background: Relaxing Rules to Cope with an Out-of-Control Emergency Surge

As COVID ravaged New York City, emergency departments (EDs) were overwhelmed by a surge of patients seeking medical attention. To accommodate the overflow, hospitals began triaging in parking lots, transferring non-COVID patients out of the facility, and treating patients in tents and adjacent office buildings. This would play out at many other hospitals as communities across the nation managed their own waves of cases.

Overcrowding in the ED was a critical problem even before COVID. Most at risk were rural geographies with limited access to physician practices/urgent care and hospitals whose communities include a higher percentage of uninsured and underinsured patients.

To help EDs cope with the crisis, the US federal government’s Centers for Medicare & Medicaid Services (CMS) made an emergency declaration in early 2020 to relax EMTALA guidelines. The goal was to facilitate care under extraordinary circumstances. However, despite this change to the rules, there is evidence that EMTALA cases are still being enforced.

Understanding EMTALA

EMTALA, enacted in 1986, requires stabilization and treatment for anyone arriving at a dedicated emergency department, regardless of their insurance status or ability to pay. The mandate arose from a number of high-profile cases where uninsured patients with medically unstable conditions were transferred to public hospitals, a practice referred to as “patient dumping”.

As long as a hospital acts and can demonstrate in good faith their compliance by screening and stabilizing the emergency medical condition, the hospital has satisfied its EMTALA requirements.

Financial Penalties

Like most carrot/stick legislative decrees, there are serious and costly repercussions imposed for violations, both for the hospitals and the individual physicians that willfully or unknowingly transfer an un-stabilized patient. Punitive fines, civil liability, and loss of participation in the CMS create enormous risks and have led to a dramatic change in emergency care practices, policies, and procedures.

Hospitals that violate EMTALA must submit a Corrective Action Plan to CMS for review. If the CMS’s Office of the General Inspector (OIG) finds the ED’s conduct actionable, it can forward the case with a recommendation for civil monetary penalties.

With so much at risk, EMTALA has shaped every aspect of ED clinical practice. From ambulances to intake, registration to triage, screening to admission to transfer. Simply stated, EMTALA governs many of the ways care is managed and how clinicians provide treatment in the Emergency Department.

Pre-COVID, How Many EMTALA Violations Were There?

There are about 150 million ED visits in the US each year. Of those, roughly 400 adverse events are determined to merit investigation, of which 200 complaints are enforced. That’s 200 hospitals out of the current 5,200 documented ER/EDs across the country. While 4% might not necessarily demonstrate a systemic problem, the effects on an individual hospital or caregiver can be devastating.

Continuing Confusion and Risk, Despite the News Guidelines

The CMS waiver aside, ED managers and medical personnel on duty continue to be confused about the new, temporary EMTALA guidelines. Although the US healthcare system is highly regulated, laws like EMTALA are challenging to adopt due to the fluidity of providing care within different settings, variable patient demographics and mix, managing on-call panels, the complexity of payment, insurance, and reimbursement, and all of the other factors of emergent healthcare.

Hospital administration must work from interpretive guidelines rather than specific instructions and issues can arise from any number of different situations. As recent enforcement actions have demonstrated, instances of willful malice have become rarer. Instead, EMTALA violations persist due to failures adhering to policies and procedures, ineffective and inconsistent training and educational opportunities, communication breakdowns, and documentation.

Addressing EMTALA Risk through Better Management of On-Call Specialties and More

Complicating the entire process was/is a nationwide shortage of on-call specialty physicians. While EMTALA does guarantee universal access, it remains unfunded. Institutions and providers are required to absorb the entire cost burden of stabilizing any patient walking through their doors, while also taking on the associated risks of malpractice and continuity of care. These factors, plus the, still-unfolding, repercussions from COVID have shrunk the available core of on-call specialists to an all-time low.

There was already an issue filling the on-call roster before COVID, what’s that going to look like as we get back to normal?

Managing the Daily Call Roster

Hospitals must maintain a comprehensive list of on-call physicians for each specialty. This list is sent into the ED by each of the contracted physician groups on a daily/weekly/monthly basis and includes the contact info for each specialty as well as their delegates.

When a specialty consult is requested, the Health Unit Coordinator (HUC) references the daily call roster and messages the corresponding physician. If the specialist cannot be reached, the HUC will contact the backups (usually, other partners in the practice), ultimately escalating on to the Chief Medical Officer if no one from the practice responds.

How TigerConnect Can Help

While the roster is essential for fast, effective delivery of care, it can also be a point of failure if not managed correctly. This becomes particularly evident when physician practices need to communicate changes to their schedules. TigerConnect Physician Scheduling delivers a flexible, easy-to-use scheduling system, allowing ED stakeholders and on-call physician practices to communicate scheduling changes, coordinate time-off requests, swap shifts directly, and see future shift assignments on an all-in-one, integrated, mobile communication platform.

Algorithms ensure fairness in on-call shift assignments and prevent burnout by including sufficient time between shifts. Pre-built workflows mean less work for IT and administrative teams, resulting in greater cost savings. The scheduling solution also integrates seamlessly with TigerConnect’s roles capability for intelligent message routing, on-the-fly secure texting, and automated shift coverage.

Summary

COVID wreaked havoc on our country’s healthcare system. The surge of patients, the absence of actionable data about transmission and treatment (early on in the pandemic), the drain of available resources, and the catastrophic loss of life took an enormous toll on our first responders, caregivers, and allied health teams. Although CMS did relax EMTALA adherence, the circumstances strained the very communications and collaboration pathways healthcare organizations adopted in the years since the law was enacted.

As Emergency Departments prepare to “get back to normal” in the coming months, managing on-call rosters, along with myriad other aspects of communications and collaboration, will likely be much more challenging. TigerConnect team is available to discuss partnering with EDs to manage this complexity and mitigate ongoing and evolving EMTALA risks.

Contact us today to learn more about how TigerConnect’s scheduling and communication platform can ensure timely communication of referrals to your on-call physicians and provide the best level of care within your ED.

References:

• Best Practices for Communications in the Emergency Department. Healthcare Financial Management Association. 2019 Oct;15 Link
• Twanmoh JR, Cunningham GP. When Overcrowding Paralyzes an Emergency Department. Manag Care. 2006 Jun;15(6):54-9. PMID: 16838886. Link
• Brockway, Laura Hale. EMTALA: Requirements for On-Call Physicians. Texas Medical Liability Trust Blog. 2009 Jun;18 Link
• Meyer, Harris. Why Patients Still Need EMTALA. Modern Healthcare. 2016 Mar;16 Link
• Stanger, Kim. EMTALA: Guide for Exams, Treatment and Transfers | Holland & Hart – Health Law Blog – JDSupra. 2018 Nov;18 Link
• Syzek,Tom. Case Examples of EMTALA Violations. The Sullivan Group Blog. 2019 Feb;5 Link

Tags: Mitigating EMTALA, OIG Enforcement Action, Emergency Medical Treatment and Labor Act, On-Call Roster, EMTALA Compliance, Patient Dumping, On-Call Physician Scheduling, physician scheduling