Feds Increase EMTALA Penalties against Physicians and Hospitals

The Office of Inspector General recently doubled the potential monetary penalty for violations of EMTALA, added a new physician decision-making scenario subject to the penalty, and modified the factors considered in determining the amount of the penalty. 

When the Emergency Medical Treatment and Active Labor Act (EMTALA) was enacted in 1986, physicians or Medicare-participating hospitals could be penalized up to $50,000 for each violation of the law [1]. That amount had never been adjusted for inflation, until recently. The Federal Civil Penalties Inflation Adjustment Act Improvements Act required government agencies to adjust upward the maximum penalty amount first by a ‘catch-up’ factor to account for the inflation over the past 30 years, and then annually as directed by the Office of Management and Budget (OMB) based on changes to the Consumer Price Index [2].

The net outcome of these calculations is that the maximum EMTALA civil monetary penalty is now $104,826. It is also important to understand that the maximum penalty may be imposed for each violation, not on a per patient basis, and the care of any one individual patient can and often does result in multiple violations [3]. For example, in the AnMed Health case discussed below, for each psychiatric patient treated in the hospital’s ED, CMS alleged that the hospital failed to appropriately screen the patient, failed to stabilize the patient’s psychiatric emergency condition, and also transferred the patient in an unstable condition – that’s three alleged EMTALA violations for each patient. The total amount of monetary penalty can add up really fast.

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Responsible Physicians
Currently, EMTALA and CMS’s regulations impose a duty to accept appropriate transfers upon Medicare-participating hospitals; there is no duty under EMTALA, or any other federal law, that requires physicians to accept patients in transfer [^4,5]. A legal axiom is that without a legal duty there can be no liability. Accordingly, the Office of Inspector General (OIG) should not be able to fine physicians for failure to accept transfers from other hospitals. Even a HHS administrative law judge fined the hospital—not the on-call physician—ruling in the case of St. Anthony Hospital vs. the OIG/HHS  that the on-call thoracic surgeon’s failure to accept an appropriate transfer of a major trauma victim established liability for the hospital [^5,6].

Despite this, the OIG unilaterally ‘redefined’ Congress’s definition of a ‘responsible physician’ for purposes of imposing EMTALA penalties to include any ‘on-call’ physician who refuses to accept an EMTALA appropriate transfer from another hospital [6]. There is no question the OIG would include emergency physicians if they are the ones designated to accept or reject transfers on behalf of the hospital.

Previously the statute and the CMS/OIG regulations defined a ‘responsible physician’ to be the emergency physician responsible for the examination, treatment, or transfer of a hospital’s ED patient or an on-call physician for that ED who refused to come in to treat the patient when requested by the emergency physician. In other words, it was defined as the physicians with the responsibility (legal duty) for the patient at the treating hospital [7]. Now the CMS/OIG regulations define a ‘responsible physician’ to include any physician on-call at a potential receiving hospital who refuses to accept an appropriate transfer, even though that physician is not on-call at the treating hospital and has absolutely no legal obligations to the patient at the treating hospital [6].

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Note however, once a patient arrives in the ED of an accepting hospital, if the physician on call at the accepting hospital refuses to come to the ED when requested to take care of the transferred patient (for example, because that physician didn’t personally ‘accept’ the patient in transfer or doesn’t want patients from a particular referring facility), then that physician does violate the law and becomes subject to EMTALA’s penalties [^1,6].

EMTALA currently imposes the duty on hospitals, not on physicians, to accept patients in transfer. Once the hospital’s medical staff learns that physicians could personally be fined over $100K, terminated from Medicare, and subject to Medicare QIO hearings, state licensing discipline, and OIG investigations for negligently declining to accept a patient in transfer, it is unlikely that any staff physician would want to participate in such transfers. Instead, to avoid liability, the physicians would likely just inform the hospital that it will have to use other hospital staff (nurse transfer center, nursing supervisor on-duty, contracted hospitalists, or the emergency physician on-duty/on-call, or whomever it chooses) – anyone other than the on-call physicians – to accept or reject transfers on behalf of the hospital.

Consequently, ED resources will be further strained as transferred patients are referred to them rather than directly admitted to on-call specialists, because on-call physicians do not incur an EMTALA duty until a patient arrives at their hospital ED, has been evaluated by the emergency physicians, and they have been formally asked by the emergency physician to participate in the patient’s care.

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As a potential solution to encourage physicians (both the hospital’s on-call physicians and its emergency physicians) to participate in the transfer acceptance process, a hospital could have its physicians ‘advise’ it on the feasibility of accepting a particular transfer but retain the sole decision-making power to accept or reject for itself. The hospital should inform transferring hospitals that its physicians do not have the delegated authority to accept or reject transfers on its behalf. Moreover, the hospital should also formally codify in its policies and procedures that the hospital, not the physicians, will decide whether to accept or reject a patient in transfer under EMTALA.

Implementation is best achieved through the use of a transfer center. All calls from other hospitals requesting the hospital accept a transfer are routed to a single location, the transfer center, which is staffed 24/7 by trained nurses. The nurses first confirm that the hospital has the necessary capacity to accept the patient (available ICU beds, operating room capability, CT scanner, adequate staffing, etc. – no need to wake up a physician if the hospital lacks the necessary resources to treat the patient) and then add the advising physician as a third party onto the phone. After considering the physician’s advice on the merits of accepting or rejecting the transfer, the nurse informs the transferring hospital if the patient will be accepted in transfer. If the advice from the advising physicians to reject the transfer doesn’t seem appropriate, there should be an advance written protocol on how to proceed (call the chief of the department, chief of staff, administrator on-call, etc.) to rectify or confirm the decision and promptly relay that decision to the requesting facility. 

Factors considered for monetary penalties or termination of physicians from Medicare
Not only has the maximum allowable monetary penalty been more than doubled, the OIG recently modified the factors it considers when assessing penalties to enhance its ability impose penalties of a greater amount, often to the maximum allowed by Congress [^8,7]. The OIG deems ‘aggravating circumstances’ to now include any financial interference with screening or stabilization of patients in the ED, patient harm, or even risk of harm resulting from the EMTALA violation, or the simple fact that the patient presented to the ED with an emergency medical condition [^8,7]. Moreover, the presence of any single aggravating factor is sufficient to justify imposing the maximum penalty of over $100K [^8,7]. For example, in one case the OIG alleged that a hospital failed to provide a medical screening exam (MSE) to a pregnant woman with possible preeclampsia. It sought the maximum penalty because of the risk of harm to the woman and the significant risk of harm to the unborn child if the woman was not provided the MSE.

In addition to, or in lieu of, a monetary penalty, the OIG may exclude from participation in Medicare and other Federal health care programs any ‘responsible physician’ who commits a gross and flagrant, or repeated violation of EMTALA [^9,8]. Physicians need to understand that the “gross and flagrant” standard  is different from a “gross negligence” standard. “Gross and flagrant” is defined by regulation to be any violation that “presents an imminent danger to the health, safety, or well-being of the patient,” or “places the individual unnecessarily in a high-risk situation” [^9,8]. Notice that it’s the patient’s condition as much as the physician’s conduct that determines whether the violation is ‘gross and flagrant,’ and therefore places the physician at risk of termination from Medicare.

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Summary
Previously, physicians and hospitals were not overly concerned about potential monetary penalties under EMTALA; they were much more worried about termination from participation in Medicare, which is essentially a financial death sentence. Now, a number of eye-popping changes by the Inspector General should give pause to all providers of emergency services regarding their compliance with EMTALA.

Largest monetary penalty in EMTALA history
EMTALA violations and subsequent fines often stem from the care of psychiatric or behavioral health patients in the ED. In June 2017, the OIG imposed the granddaddy of all fines – $1,295,000 – on a South Carolina Hospital called AnMed Health, for allegedly failing to appropriately screen and stabilize psychiatric patients presenting to the hospital’s emergency department [^10,9]. CMS and the OIG claimed that: (1) the ED should have required its on-call psychiatrist to come to the ED to personally examine all patients with psychiatric symptoms and participate in the screening and stabilizing of each of these patients, irrespective of whether the emergency physician needed or requested the services of the on-call psychiatrist (asserting, in effect, that emergency physicians are incapable of screening or stabilizing psychiatric patients under EMTALA); (2) the hospital should have admitted involuntarily-committed patients to its inpatient psychiatric unit instead of boarding them in its ED until they could be transferred to the nearby State psychiatric hospital—despite the fact that for over thirty years the hospital only admitted ‘voluntary’ patients to its psychiatric unit by written policy and actual practice; and (3) that the ED inappropriately transferred the patients in an unstable condition when it transported them in the back of locked secure police care for approximately 11-13 minutes or six miles to the State hospital [1^1,10].

DON’T MISS THIS
At the ACEP Scientific Assembly in Washington, DC, on October 29th, a panel of senior officials from CMS and the OIG will discuss the AnMed case and answer questions regarding the EMTALA requirements related to screening, stabilizing, and transferring psychiatric patients in the emergency department.

REFERENCES

1. 100 Stat. 167 (1986) codified at 42 USC 1395dd(e)(1).
2. 129 Stat. 599 (Nov. 2, 2015).
3. 81 Federal Register 61538 et seq. (Sept. 6, 2016). Adjustment of Civil Monetary Penalties for Inflation; and 82 Federal Register 9174, 9179 (Feb. 3, 2017). Annual Civil Monetary Penalties Inflation Adjustment.
4. 81 Fed. Reg. 88334 et seq., December 7, 2016, to be codified at 42 CFR 1003.110.
5. 42 USC 1395dd(g); 42 CFR 489.24(f); CMS Interpretive Guidelines Tag A-2411/C-2411.
6. OIG vs. St. Anthony Hospital, DAB Docket No. C-98-460, Decision CR620, October 5, 1999.] The judge’s ruling was upheld by the HHS’s Appeals Board and the 10^th Circuit Court of Appeals.
7. 81 Fed. Reg. 88334 et seq., December 7, 2016, to be codified at 42 CFR 1003 and 42 CFR 1003.500, 510, and 520.
8. 42 CFR 1003(c) and (d).
9. OIG Civil Monetary Penalties and Affirmative Exclusions, available at https://oig.hhs.gov/fraud/enforcement/cmp/cmp-ae.asp   
10. CMS Region IV EMTALA Citation against AnMed Health, CMS Certification Number: 42-0027, EMTALA Complaint Control Number: SC 23639, dated May 6, 2015.]