A recent study found that fines against hospitals and physicians for violating the Emergency Medical Treatment and Labor Act (EMTALA) totaled over $6 million between 2002 and 2015. Despite the fact that only 3 percent of investigations trigger a civil monetary penalty, the risk of a potential $50,000 fine per violation coupled with negative publicity and reputational harm make focusing on preventing any EMTALA violation a worthwhile investment.

EMTALA impacts all providers with an emergency department, especially as health care organizations are looking for ways to address unnecessary ED utilization. Signed into law more than 30 years ago, EMTALA requires hospital emergency departments to medically screen every patient who seeks emergency care and stabilize those with medical emergencies regardless of health insurance status or ability to pay.

Recently, we spoke with Douglas Swill, the chair of Drinker, Biddle, & Reath LLP's National Health Care Practice. We asked him about the main challenges facing providers related to EMTALA today, the boundaries of when the law applies, how to prevent a violation, and what to do if under review.

Question: What are the main challenges facing providers related to EMTALA?

Swill: On the surface, EMTALA does not seem like a complicated law, but it has become more problematic in recent years due to resource utilization, health reform, and the shift toward consumerism.

The Affordable Care Act resulted in an increase in health care utilization among the population at large, in part because patients have become more health-literate and demanding of health care resources. This trend—fueled by an increase in consumerism and the expectation for convenient, immediate, and around-the-clock access points—has left providers at increased risk of potentially violating EMTALA, given EMTALA's numerous requirements including providing an appropriate medical screening exam and ensuring on-call physicians respond when requested.

And these challenges are here to stay: If many patients lose their health care coverage, ED use is likely to continue to increase given the trend in health care consumerism.

Q: When does EMTALA apply?

Swill: EMTALA applies when a patient comes to the hospital and lasts until the patient is stabilized in the ED, appropriately admitted as an inpatient, or properly transferred.

There are four common situations that can trigger an EMTALA violation within this timeframe. One, patients may be encouraged to go elsewhere once on hospital property. For example, a security guard on the hospital campus may suggest a patient go to an alternate site of care. Two, patients may not be triaged in a timely manner or may leave before being screened. Three, screenings may not be performed correctly or by the appropriate staff member. And lastly patients may be inappropriately transferred to another facility.

That said, there are a few misconceptions about what does and doesn't constitute a violation. For example, educating and diverting patients to more appropriate services before they present in the ED is not necessarily an EMTALA violation.  Hospitals may permissibly work with their local EMS providers to inform them of the hospital's capabilities.

Q: What can health care organizations do to prevent a violation?

Swill: Generally, an EMTALA investigation is triggered by a patient filing a complaint due to dissatisfaction with timeliness or service in the ED, although an investigation does not necessarily follow a report. Focusing on staff training, effective operations, and regular patient interaction can help prevent violations:

1. Staff training: Provide all ED staff and other applicable staff with initial and ongoing compliance training, and educate them with regard to the multiple hospital policies that relate to EMTALA, including but not limited to on-call physicians, as well as their role in regards to EMTALA. This includes screening, triaging, and checking in on patients.
2. Streamlined and effective operations: Ensure patients are processed efficiently and that there are different care pathways within the ED for patients depending upon the urgency of the need for care.
3. Frequent patient touchpoints: Make sure a staff member visits patients periodically in the waiting room to monitor the severity of emergency medical conditions and their satisfaction with their stay.

Q: How should providers react to a possible violation or upcoming review?

Swill: When under review, there are three critical steps to take immediately: engage your in-house or outside counsel sooner than later, conduct a thorough review with corrective action, and train or retrain staff.

During the review process, CMS and the Office of Inspector General like to see that corrective action was taken before the CMS complaint, including disciplinary action if appropriate. It is also very important to hold EMTALA-specific compliance education for staff and to explain what operational changes need to be implemented. And if the issue can be traced back to specific staff members, it is important to hold those individuals accountable.

Although the EMTALA review is triggered by an individual patient's event, the review is not limited in scope. CMS surveyors could ask for a range of documents; for this reason, it's important to ensure where appropriate that internal documents are protected by attorney-client privilege. Similarly, in the case of parallel litigation from a patient or family member, such as a malpractice lawsuit, you will want to ensure the EMTALA review is conducted under the attorney-client confidentiality privilege.

Following an EMTALA citation, providers must submit a plan of correction outlining necessary changes, which is why the above are no-regret strategies when under review. Being proactive won't just assist with the review process itself; it ensures you are getting a head start on required improvements.

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