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Emergency department signage that discourages drug seekers might violate EMTALA  

New York City’s Mayor Michael Bloomberg stepped into emergency department operations in January with an administrative order restricting the use of pain killers in the city’s emergency departments. While various hospitals are reported to be voluntarily complying (the order lacks legal authority over the 50 hospitals in the city) Bloomberg is on a collision course with a recent ruling from CMS that suggests that those hospitals are in violation of EMTALA.

The issue has come to a head with the introdcution of new ED posters aimed at “educating” the public. A recent opinion issued in South Carolina warns that the signs are an EMTALA violation.

It began when the South Carolina Hospital Association inquired of CMS about a proposed series of ED signs related to restrictions on pain medications. In an official response, CMS advised that the signs “might be considered to be coercive or intimidating to patients who present to the ED with painful medical conditions, thereby violating both the language and the intent of the EMTALA statute and regulations.”

The signs were typical of those circulating in ED circles that recite drug safety information and state the policies limiting dispensing of drugs for pain. Among those items listed on the notice that might discourage patients from remaining in the ED for care are:

  •  Requirement of a photo ID
  •  Notice that we will research you in the state prescription database
  •  Policy against medication shots for pain
  • Policy against refills for lost or stolen medications
  • Policy against prescribing methadone
  • Policy against prescribing listed long-acting drugs for non-cancer pain
  • Policy against pain medications if the patient has a prescription elsewhere


CMS cautioned that variations on the wording of the signs would carry the same risk of violation under EMTALA.

Pain and Symptoms of Substance Abuse
While the CMS letter acknowledged ED concerns about the increasing prevalence of prescription drug abuse, they point out that EMTALA requires an appropriate medical screening examination prior to the determination of the patient’s condition and legitimate care needs.

CMS reminded the SCHA and its members of EMTALA definitions that state:
(e)(1) The term “emergency medical condition” means- (A) a medical condition manifesting itself by acute symptoms of sufficient severity including severe pain (emphasis added).

42 CFR 489.24 (b) defines “Emergency medical condition” as (1) A medical condition manifesting itself by acute symptoms of sufficient severity including severe pain, psychiatric disturbances and/or symptoms of substance abuse (emphasis added).

42 CFR 489.24 (d) (4) (iv) states that Hospitals may follow reasonable registration process... However “Reasonable registration processes may not unduly discourage individuals from remaining for further evaluation” (emphasis added). Furthermore, hospitals should not deny emergency services based on diagnosis, financial status, race, color, national origin, or disability (State Operations Manual Appendix V). Such cases will additionally be referred to the HHS Office of Civil rights (OCR) for investigation of discrimination. CMS Interpretive guidelines (SOM Appendix V) state that although patients may leave the emergency department of their own free will, they should not leave based on a “suggestion” by the hospital or through coercion.

This response was provided by a the Regional Office of CMS in Atlanta, so other regional offices may differ in interpretation. However, more than likely, this response has set a meaningful precedent.

What CMS Requires
The CMS statement directs: “After performing an appropriate medical screening exam, it is within the bounds of reasonable professional medical judgment and discretion for an appropriately licensed physician or other health care practioner [sic] [sic] to provide or to withhold narcotic or other methods of pain control in a particular patient depending on the specific clinical circumstances.”

Full documentation is expected to support the thoroughness of the MSE and support whatever care is provided.

Taken together, the two statements suggest that signs alone are not the only EMTALA risk, as blanket policies, procedures, and protocols will be viewed as potential violations of the MSE and stabilizing care requirements of EMTALA as well, if they are deemed to restrict individualized treatment or professional treatment options.

On Florida Hospital’s website, it is worth noting that while they do reference the presence of the offending signs which must be removed under the CMS position statement, they have guidelines regarding pain care rather than policies and procedures. This is an important distinction, as guidelines are typically written as suggestions subject to professional judgment on a caseby- case basis, while policies and procedures are mandatory and do not allow for professional judgment. CMS cites deviations from policies and procedures as violations.

The CMS letter also indicates that “Blanket statements or protocols should not supersede professional medical judgment in individual cases.”

Is This A Surprise?
The SCHA indicates that the CMS response “created quite a stir.” But should it have?

The reaction from CMS is entirely consistent with its previous rulings and actual citations. Any sign that might confuse, contradict, or detract from the notice of EMTALA legal rights has consistently been cited as a violation. Signs about co-pays, types of insurance that is accepted, and potential charges have been cited because patients might be deterred from using their EMTALA rights.

In a prior CMS written opinion, a state requirement that a sign be posted warning Medicaid patients that they would be personally responsible for non-emergency charges was determined to violate EMTALA because it carried the implied threat of financial penalty.

In this case, the ED providers may hope that the signs will change expectations from patients, but in the harsh reality, the goal is specifically to discourage drug seekers from taking up the valuable time of the physician – a reasonable goal, but not acceptable under EMTALA. The sign is intended to discourage patients, which is simply not permitted.

This Is Not A Mandate To Dispense Drugs
CMS is not mandating that physicians give out drugs like popcorn. They are mandating that patients not be discriminated against in EDs because they come in complaining of pain or be discouraged from being examined.

EMTALA mandates that each of these patients gets a medical screening examination that attempts to determine whether an emergency medical condition, including pain, is present. If the EP determines that such a condition, including severe pain, is present the expectations are the same as any trauma patient – the EP is to use their professional judgment on testing, treating, specialty consults, and/or transfer as appropriate to this individual.

But, what if the EP determines that the patient actually has a drug dependency problem and no actual medical problem? Symptoms of substance abuse is a specifically defined emergency medical condition under EMTALA, so professional judgment in managing the individual is expected.

The CMS letter also suggests “While many of the points mentioned in the information you submit are appropriate points for discussion between the patient and the physician or other health care practioner [sic], they should be discussed in the context of an appropriate medical screening exam rather than be posted in the ED before patients are provided an appropriate medical screening exam.”

Note The CMS Position

  • EMTALA has not changed, and there is nothing new in the CMS position:
  • Everyone gets a Medical Screening Examination.
  • Don’t post signs that might cause someone to leave
  • Don’t engage in presumptive or discriminatory attitudes
  • Don’t adopt policies or protocols that limit compliance with EMTALA



 

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