 Karen Markus, JD, RN |
Legal File |
| Patient Dumping | |
| It's illegal, and you should know how to spot it |
|
Karen Markus, JD, RN |
Legal File |
| Patient Dumping | |
| It's illegal, and you should know how to spot it |
|
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tell Karen Markus, JD, RN, is an attorney at law specializing in legal nurse consulting. She teaches healthcare law at Santa Clara University School of Law. |
By
Karen Markus, JD, RN If you work in a hospital that provides emergency services—whether or not you work in the ED—you must be familiar with the laws that prohibit patient dumping. Patient dumping happens when a medically unstable patient is transferred or discharged for financial reasons. In 1986, in response to widely publicized dumping incidents, Congress passed the Emergency Medical Treatment and Active Labor Act (EMTALA), sometimes referred to as COBRA since it was part of the year’s Consolidated Omnibus Budget Reconciliation Act.1 An institution that violates COBRA may be subject to serious penalties such as injunctions, fines, civil damages, and even the loss of Medicare and Medicaid funding. Requirements EMTALA requires that every patient who seeks care at a hospital that provides emergency services must be screened by a qualified medical professional for the presence of an emergency medical condition. A hospital need not have an established ED in order to offer emergency services. For example, a hospital that offers emergency services for psychiatric conditions or substance abuse must comply with EMTALA requirements within the scope of its abilities. Medical screening must be done by a healthcare professional who is licensed and authorized by hospital bylaws to order tests and make medical diagnoses. The professional could be a physician, nurse practitioner, or physician assistant. Screening has to include whatever tests and on-call specialists are necessary to determine whether an emergency medical condition exists. Triage by a nurse is not considered screening under EMTALA. Triage determines the order in which patients receive medical screening, but does not substitute for it.2 EMTALA’s broad definition of emergency medical condition includes anything that is a danger to the health and safety of the patient or that may result in impairment of any body part or function if not treated promptly. It specifically covers undiagnosed acute pain, symptoms of substance abuse, psychiatric conditions, and pregnancy with contractions. A patient with an emergency medical condition cannot be transferred until stabilized unless transfer to a better-equipped or staffed facility is medically necessary.2 It is important to know that EMTALA requirements do not apply only to EDs. The only EMTALA case heard by the U.S. Supreme Court, decided in January 1999, involved the transfer of a woman who had been hospitalized for over two months. The patient, who had been severely injured in a car accident, started running a fever the day before her transfer, to a skilled nursing facility. The day after she was transferred, her temperature spiked to 105° and she had to be moved to an acute care facility, where she remained for six months. The patient alleged that the hospital had violated EMTALA by transferring her when she was in an unstable condition.3 Documentation Before transferring a patient with an emergency medical condition, a physician must certify either that the patient is stable or that the benefits of the transfer outweigh the risks. A patient is stable when his or her condition is not likely to deteriorate as a result of being transferred.2 Nursing documentation is vital to support this certification. When the Health Care Financing Administration (HCFA) investigates an EMTALA complaint, it reviews the ED log and medical records for at least six months prior to the alleged violation. It may also look at personnel records of the nursing staff. A recent EMTALA citation issued to a California hospital found numerous instances of inadequate nursing documentation. In one case the medical record did not contain a pre-discharge nursing assessment of the level of consciousness of a patient admitted to the ED with a seizure. In another, the ED nurses did not adequately document the vital signs of a critically ill 11-month-old who died from dehydration immediately after transfer to another facility. HCFA also found that almost half the ED nurses had not maintained mobile intensive care nurse and advanced cardiac life support certification as required by their job description.4 Patients cannot be transferred without permission from the receiving facility. The date and time of the transfer request and the name of the person accepting the transfer should be documented. The patient must be accompanied by a transfer summary and all medical records related to the emergency medical condition.2 Violations Managed care enrollees may be the most likely victims of dumping.5 Dumping may occur when the legal duty of hospitals to screen patients for emergency medical conditions clashes with the requirement made by a managed care organization (MCO) for pre-authorization for treatment. Hospitals must screen for an emergency medical condition before asking whether the patient can pay, and some MCOs have used that fact to their own advantage by denying authorization for treatment. HCFA guidelines state that it is not appropriate for hospitals to request, or MCOs to require, authorization for payment prior to medical screening for emergency conditions.2 Nurses must therefore be careful not to allow pre-treatment authorization requirements to delay screening or to be used to encourage the patient to seek treatment elsewhere. An estimated one in four acute care hospitals in the United States have been cited for EMTALA violations. In 1998 alone the federal government settled 54 dumping cases for $1.8 million in penalties.5 Because of continuing violations, HCFA and the Office of the Inspector General have stepped up enforcement. Nurses can be instrumental in detecting and reporting EMTALA abuses. Under federal law, receiving facilities must report suspected EMTALA violations to HCFA within 72 hours.
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