The reported hospital parking lot death last month of David Bell (“Director Bell”) after hospital emergency staff allegedly turned him away without treatment highlights the potential Emergency Medical Treatment and Labor Act (EMTALA) challenges and risks many EMTALA-covered hospitals face juggling surging care demands during the continuing COVID-19 health care emergency. While insufficient facts are known to assess whether the hospital violated Director Bell’s EMTALA rights, the events highlight the advisability for all EMTALA covered hospitals to take documented steps to verify the hospital emergency triage and discharge procedures remain compliant Throughout the ongoing Coronavirus Disease 2019 (COVID-19) pandemic.
Hospital Parking Lot Death Of David Bell
A 39-year old director for Central County Fire and Rescue in Missouri, Director Bell sought and the hospital refused him care for severe chest pain twice previously the week of January 8, 2021 before Director Bell was rushed back to the hospital after experiencing trouble breathing at work on January 12, 2021. On the two prior occasions, his widow said the hospital sent Director Bell home with an instruction to take Ibuprofen without treating or admitting him. When she arrived at the hospital on January 12, Ms. Bell reports she found Director Bell seated in a wheelchair outside of the building after doctors against refused to examine him. He died while Ms. Bell was taking him to the car to take him to another hospital.
Whether the hospital breached its EMTALA obligations to Director Bell triage and stabilize Director Bell during these encounters ultimately depend upon whether the hospital’s complied with the requirements of EMTALA, taking into account the flexibility allowed for meeting these requirements granted by the Centers for Medicare & Medicaid Services (CMS) during the ongoing COVID-19 health care emergency.
EMTALA generally requires Medicare participating hospitals and critical access hospitals with a dedicated emergency department (“ED”) at a minimum to:
- Provide a medical screening exam (MSE) by a suitably qualified professional to every patient who comes to the hospital’s ED for examination or treatment for a medical condition to determine if the individual has an emergency medical condition or is in active labor (EMC). An emergency medical condition is present when there are acute symptoms of sufficient severity such that the absence of immediate medical attention could reasonably be expected to result in serious impairment or dysfunction per 42 CFR 489.24(b) (the “Screening Requirement”); and
- For any individual with an EMC, must either provide or such further medical examination and such treatment as may be required to stabilizethe medical condition within the staff and facilities available at the hospital or if the hospital lacks the necessary facilities arrange for transfer of the individual to another medical facility in accordance with EMTALA.
EMTALA rights generally attach to individuals seeking emergency care at or within 250 feet of a covered facility’s emergency room.
EMTALA During COVID-19 Health Care Emergency
Covered hospitals generally remain responsible for continuing to comply with and exposed to sanctions for violations of EMTALA during the COVID-19 Health Care Emergency except to the extent covered by the limited blanket waiver of certain requirements of EMTALA specified in CMS’ COVID-19 Emergency Declaration Blanket Waivers for Health Care Providers (the “1135 Waiver”). Covered hospitals and their providers need to keep in mind that CMS’ 1135 Waiver authority does not include the power to waive all requirements of EMTALA. Rather, it only allows CMS during a declared health care emergency to grant covered hospitals greater flexibility in accordance with applicable CMS guidance to:
- Redirect an individual to another offsite alternate screening location to receive a medical screening exam under a state emergency preparedness or pandemic plan if certain conditions are met; and
- Transfer of an individual who has not been stabilized, if the transfer arises out of an emergency.
In the 1135 Waiver, CMS exercised this limited 1135 Waiver authority with respect to EMTALA to allow covered hospitals to screen patients at a location offsite from the hospital’s campus to prevent the spread of COVID-19, in accordance with the state emergency preparedness or pandemic plan provided that waivers to provide Medical Screening Examinations at an offsite alternate screening location not owned or operated by the hospital will be reviewed on a case-by-case basis.
Covered hospitals and their providers also should keep in mind CMS’ reminder in the 1135 Waiver that its EMTALA relief is only available if the hospital’s actions under the waiver do not discriminate as to source of payment or ability to pay.
In addition to the limited EMTALA Relief provided by the 1135 Waiver, CMS also has published various guidance to aid covered hospitals in understanding and meeting their continuing EMTALA obligations during the COVID-19 health care emergency such as its March 30, 2020 Memorandum on Emergency Medical Treatment and Labor Act (EMTALA) Requirements and Implications Related to Coronavirus Disease 2019 (COVID-19) (Revised) and April 30, 2020 Frequently Asked Questions for Hospitals and Critical Access Hospitals regarding EMTALA (the “FAQ”). This CMS guidance allows added flexibility for covered hospitals and providers in fulfilling their EMTALA obligations during the ongoing health care crisis, as well as other guidance. For instance, CMS has clarified that:
- Hospitals must provide a MSA to determine in an EMC exists to each individual arriving at ED requesting treatment for a medical condition or demonstrating the presence of a medical condition. If a QMP determines through the completion of a MSA that the individual does not have an EMC, the hospital’s EMTALA obligation ends and the hospital may refer the individual to an urgent care center for continued care of a non-emergency illness or injury. However, a section 1135 waiver gives hospitals the ability to establish and re-direct incoming patients presenting at the ED to alternative EMTALA screening sites staffed by qualified medical workers to ensure that symptomatic or COVID-19-positive patients are directed to appropriate settings of care unless the individual obviously needs immediate treatment in the ED(FAQ #6).
- Covered facilities may to use telemedicine or alternative locations within or at separate facilities to conduct EMTALA triage assessments. When clinically appropriate, MSEs may perform triage assessments solely via telehealth. When a QMP located on campus conducts an assessment via electronic two-way technology, the service is not considered a telehealth visit. Regardless of location, the QMP must be performing within the scope of his/her state practice act limitations and approved by the hospital’s governing body to perform MSEs (FAQ #1).
- Hospitals may establish alternative sites on campus to perform MSEs and may redirect individuals to those alternative sites. Hospitals should log in individuals where seen, whether at the alternate on-campus site or in the ED. Individuals need not present to the ED first, and those hospital may redirect those presenting the ER to an on-campus alternative screening location for logging in and subsequent screening provided the person providing the redirection from the ED is qualified to recognize individuals obviously needing of immediate treatment in the ED (FAQ #3).
- Patients presenting solely for COVID-19 testing and not making a request for treatment of a medical condition, do not necessarily require a MSE. However, EMTALA generally applies if a patient who is solely seeking COVID-19 testing makes a request for medical treatment while on the hospital campus or demonstrates a medical condition that a prudent layperson would believe, based on the individual’s appearance or behavior, indicates that the individual needs examination or treatment of a medical condition. (FAQ #5).
- Likewise, where a hospital has an offsite COVID-19 testing location, patients that only present to the hospital for testing without requesting additional services do not need a MSA before they are referred offsite, unless the patient requests examination or treatment for a medical condition or demonstrate a medical condition for which a MSE is necessary (FAQ #9).
- Hospitals may transfer patients (including non-COVID-19 patients) to a designated facility to better isolate or cohort patients in accordance with a state emergency preparedness and pandemic plan, following an appropriate MSE and determination that the individual is stable for an appropriate transfer (FAQ #2).
- Hospital governing bodies still must approve qualified medical professionals (“QMPs”) to perform MSEs. However, CMS allows hospitals on a case-by-case to request section 1135 waivers to allow MSEs to be performed by qualified medical staff acting within their scope of practice and licensure who are authorized by the hospital even though not designated in the hospital bylaws to perform the MSEs.
Beyond these clarifications, the CMS guidance also provides other clarification about alternative site and onsite COVID-19 testing; coordination of COVID-19 infectious disease containment and EMTALA responsibilities, alternative site screening facilities; requirements and considerations and procedures for transfers, responsibilities to provide stabilizing care pending transfer and more.
Covered hospitals should carefully evaluate and adjust procedures during the ongoing health care emergency in accordance with this guidance to facilitate their compliance in the course of operations and minimize the potential for violations.
Act To Minimize EMTALA Sanction Risk
EMTALA violations can be costly for hospitals and providers. Potential sanctions for EMTALA violations can include:
- Termination of the hospital or physician’s Medicare provider agreement.
- Hospital fines up to $104,826 per violation ($25,000 for a hospital with fewer than 100 beds).
- Physician fines $50,000 per violation, including on-call physicians.
- Personal injury judgements from malpractice or other suits brought by injured private litigants.
- A receiving facility, having suffered financial loss as a result of another hospital’s violation of EMTALA, can bring suit to recover damages.
Enforceable by either the Department of Health & Human Services Office of Inspector General or CMS, penalties can be imposed even without an adverse outcome. Since these sanctions generally can be assessed up to two years after the violation, exposures from violations occurring during the crisis could linger for up to two years.
While maintaining operational compliance with EMTALA can be challenging in ordinary times, several factors increase the potential exposures and risk of sanctions for facilities operating during the COVID-19 health care emergency. Among other things, these include the widespread use of new, locum tenens and other contract staff, their delayed credentialing as qualified providers and other training issues; high turnover; handling high volumes of patients in short periods of time; difficulty distinguishing COVID-19 and their acuity from other symptoms, triage and treatment; atypical triage and treatment environments; judgment and other performance issues arising from staff fatigue, burnout, illness or hostility, issues; COVID infectious disease protocol related delays and disruption in facilities access and triage; capacity driven heightened need for transfer coupled with delay or unavailability of alternative suitable treatment facilities; diminished oversight and controls associated with crisis operations and others. Given these difficult circumstances, covered hospitals and their providers of course should take well documented efforts to require, follow, monitor, investigate, enforce and respond proactively to complaints of possible EMTALA compliance issue throughout the ongoing health care emergency to prevent violations or provide evidence to support mitigated liability.
We hope this update is helpful. For more information about the these or other health or other legal, management or public policy developments, please contact the author Cynthia Marcotte Stamer via e-mail or via telephone at (214) 452 -8297.
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About the Author
Recognized by her peers as a Martindale-Hubble “AV-Preeminent” (Top 1%) and “Top Rated Lawyer” with special recognition LexisNexis® Martindale-Hubbell® as “LEGAL LEADER™ Texas Top Rated Lawyer” in Health Care Law and Labor and Employment Law; as among the “Best Lawyers In Dallas” for her work in the fields of “Labor & Employment,” “Tax: ERISA & Employee Benefits,” “Health Care” and “Business and Commercial Law” by D Magazine, Cynthia Marcotte Stamer is nationally recognized for her work and thought leadership on health and other health and employee benefit issues.
An attorney board certified in labor and employment law by the Texas Board of Legal Specialization and Fellow in the American College of Employee Benefit Counsel, Ms. Stamer has worked as an on demand, special project, consulting, general counsel or other basis with health care providers, health insurers, employer and other management organizations, health and other employee benefit plans, their sponsors, insurers, administrators, providers and others and others has published and spoken extensively on these concerns.
A former lead advisor to the Government of Bolivia on its pension project, Ms. Stamer also has worked internationally and domestically as an advisor and advocate for employer and other plan sponsors, fiduciaries, administrators, insurers, technology and other service providers, managed care organizations, direct primary care and other health care providers and others on these and other legislative, regulatory and other legislative and regulatory design, drafting, interpretation and enforcement, as well as regularly advises and represents organizations on the design, administration and defense of workforce, employee benefit and compensation, safety, discipline, reengineering, regulatory and operational compliance and other management practices and actions.
Ms. Stamer also serves in leadership of a broad range of professional and civic organizations and provides insights and thought leadership through her extensive publications, public speaking and volunteer service with a diverse range of organizations including as Chair of the American Bar Association (“ABA”) Intellectual Property Section Law Practice Management Committee, Vice Chair of the International Section Life Sciences and Health Committee, Past ABA RPTE Employee Benefits & Other Compensation Group Chair and Council Representative and current Welfare Benefit Committee Co-Chair, Past Chair of the ABA Managed Care & Insurance Interest Group, past Region IV Chair and national Society of Human Resources Management Consultant Forum Board Member, past Texas Association of Business BACPAC Chair, Regional Chair and Dallas Chapter Chair, former Vice President and Executive Director of the North Texas Health Care Compliance Professionals Association, past Board President of Richardson Development Center (now Warren Center) for Children Early Childhood Intervention Agency, past North Texas United Way Long Range Planning Committee Member, past Board Member and Compliance Chair of the National Kidney Foundation of North Texas, a Fellow in the American College of Employee Benefit Counsel, the American Bar Foundation and the Texas Bar Foundation and many others.
For more information about these concerns or Ms. Stamer’s work, experience, involvements, other publications, or programs, see www.cynthiastamer.com or contact Ms. Stamer via e-mail here.
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