WhiteCoat

Do Hospital Policies to Deter Potential Drug Seekers Violate EMTALA?

Interesting issue brought to my attention by a reader in South Carolina.

One of the hospitals in South Carolina wanted to post a sign in its emergency department waiting room stating the following:

Prescribing Pain Medication in the Emergency Department

Our Emergency Department staff understands that pain relief is important when one is hurt or needs emergency care. However, providing pain relief is often a complex issue, especially when pain is a chronic or recurrent process. Mistakes or misuses of pain medication can cause serious health problems and even death. Our Emergency Department will only provide pain relief options that are safe and appropriate.
• The primary role of the Emergency Medicine provider is to look for and treat an emergency medical condition. We will use our best medical judgment when treating pain, following all legal and ethical guidelines.
• You may be asked about a history of pain medication use, misuse, or substance abuse before prescribing any pain medication.
• We may ask you to show a photo ID, such as a driver’s license, when you check into the Emergency Department or receive a prescription for pain medications. We may also research the statewide prescription data base regarding your prescription drug use.
• We may only provide enough pain medication to last until you can contact your doctor. We will prescribe pain medications with a lower risk of addiction and/or overdose when possible.

 For your safety, we do not:
– Give pain medication shots for sudden increases in chronic pain, or aggravation of chronic pain syndromes.
– Refill lost or stolen prescriptions for medications. You must obtain refill prescriptions from your primary care provider or pain clinician.
– Prescribe missed methadone doses, or provide prescription refills for chronic pain management.
– Prescribe long-acting pain medications, such as OxyContin, MSContin, fentanyl patches, or methadone for chronic, non-cancer pain.
– Prescribe pain medications if you already receive pain medication from another doctor or emergency department.

The Centers for Medicare and Medicaid Services (CMS) had a different take.

EMTALA requires that every patient seeking care in the emergency department receive a “screening exam” and then receive “stabilizing treatment” of any emergency medical condition. In other words, if you are having a heart attack, the emergency department is required to stabilize you regardless of your ability to pay. If you have a runny nose or other non-emergency condition, the emergency department still has to examine you, but then doesn’t have to treat you. In either case, the hospital isn’t allowed to discourage you from seeking care.

CMS therefore wrote a letter to the South Carolina Hospital Association [.pdf file] and advised it that hospitals displaying such a sign would likely “unduly coerce [patients with legitimate medical needs] to leave the ED before receiving an appropriate medical screening exam.” Therefore, CMS considered such signs as potentially constituting an EMTALA violation.

I disagree with a lot of things about EMTALA. It is an unfunded mandate. Its reach has progressed far beyond the initial intent of the statute. But unless and until we repeal it, we are stuck with it.

I’m interested in your opinion, though.

Should a sign like the one above be considered an EMTALA violation?
Is it any different than hospitals that advertise their wait times? After all, a patient with an emergency medical condition may see the advertised wait time as being too long and might not go to a hospital because of it.

Vote below and leave a comment.

Should signs discouraging potential drug seeking patients from coming to the emergency department be considered an EMTALA violation?

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27 Responses to “Do Hospital Policies to Deter Potential Drug Seekers Violate EMTALA?”

  1. C. says:

    After a car accident that left me very broken, I keep a file with me of my films, reports and scripts just in case I end up in the hospital for pain. Though under the care of many drs including pain management, I have chosen to crawl on the floor and wait until an appt is available before I will voluntarily go to the er and have to explain the accident and neurosurgery, the rsd and pain management I’ve had that didn’t work to be accused of being a drug seeker. So maybe the sign will work.

  2. Shelby says:

    I think I have triaged you, C, last weekend.

  3. kimberly says:

    I think it *could* be considered an EMTALA violation, but shouldn’t.

    There are many, many, many things out there that could induce people to leave and not seek care at a particular ER: number of people in the waiting room, number of ambulances in the drive, presence/number of police cars in the drive, cars belonging to certain physicians in the parking lot, presence of a metal detector at the doorway, a female nurse at triage, a male nurse at triage, odors wafting out to the WR from a room in the back, discharged patients (“waiting on a ride”) soliciting those in the WR … I could (obviously) go on and on.

    We cannot (and should not) limit everything that could potentially drive potential patients away.

    If that sign is enough to keep people away, they weren’t that interested in getting care.

  4. Mandy says:

    I disagree with a lot of things about EMTALA. It is an unfunded mandate. Its reach has progressed far beyond the initial intent of the statute. But unless and until we repeal it, we are stuck with it.

    THIS.

    Especially the “its reach has progressed far beyond the initial intent of the statute” bit.

    We absolutely needed a mandate so that, say, in a car accident or other life-threatening emergency situation, there wouldn’t be the horrific specter of a victim being left to die because they didn’t have money or insurance. Not that any doctor or hospital I know of would have done that anyway, but still, it’s a guarantee that none will.

    But it’s turned into a monster, as any number of anecdotes will attest to.

    Back to the question in the poll, no I don’t think signs discouraging potential drug seeking patients from coming to the emergency department should be considered an EMTALA violation.

    It’s an EMERGENCY Department. If you come in at 3am with a crushed limb or a broken foot or even a suddenly-flared-up abscessed tooth that has made half your face swell up and your eyes fill with tears, that sign is NOT going to deter you. If you’re coming in for a shot of “that medicine that starts with a D-something” or a refill/replacement/new script of opioid analgesics for some kind of non-lifethreatening ongoing hard-to-pinpoint chronic pain issue, then the EMERGENCY Department is not the right place for you anyway.

  5. Ian Random says:

    The South Carolina hospital should’ve sent CMS a bill for all the uncompensated care. With Obamacare do we even need the EMTALA? Imagine the day we can quickly cheaply measure pain.

    http://www.scientificamerican.com/podcast/episode.cfm?id=scientists-find-a-new-way-to-measur-11-09-20

  6. LC says:

    I think it is acceptable. The statement is that you will be treated for the emergent pain.

    I wonder if CMS thinks it will force the drug seekers to do some kind of real damage to themselves in order to seek drugs. I think CMS should have let it ride, after all, the HCAHPS score may go down so much the hospital and could result in a lower payment for services. Shouldn’t CMS then be happy for the money they’d save?

  7. eefen says:

    EMTALA allows for a screening exam to rule out “emergecies” – if anything, this sign might serve as somewhat of a “self-screening” exam for patients. As mentioned, patients who really need the services of an ED won’t care what the sign says.

    Of course, those who ARE drug-seeking might not either….but at least it gives the staff a sign to point to when things escalate…

  8. DavidH says:

    Virtually everyone in Emergency Medicine is contemptuous of drug seekers. And of course it’s true that they are a drain on the system, a waste of resources and generally annoying (especially when lying, which is whenever they move their lips).

    That said, 1) Drug addiction is a serious disease and “seeking” is a symptom. The patient should be appropriately triaged and treated without preconditions. The ED could be the first step toward recovery and possibly the only time the “seeker” will see a physician before s/he dies of the disease.

    2) Pushing the envelope on EMTALA is not a good idea in general. It’s a slippery slope with little payoff. Will drug seekers actually be deterred by a sign? I better way to tweak EMTALA would be to list actual costs of ED treatment. Make a chart that compares ED, urgent care and primary physician costs for typical conditions, like UTI or strep throat. Guilt trip patients into using the appropriate services.

  9. girlvet says:

    We have almost the exact same sign in triage and all of our rooms

  10. Thomas Benzoni says:

    I am a physician and I know this is no EMTALA violation.
    I am no required to fix evry thing that comes in.
    I can’t fix the broken heart, the abuse victim’s life situation, the homeless vet’s shelter problem. I can’t fix the obese diabetic’s neuropathy. I fix what I can after assessment.
    EMTALA requires me to assess. The hospital, JCAHO and CMS require me to satisfy.
    There is a difference.
    Study it.

    • T H says:

      AMEN, Brother! AMEN!

      And satisfy? No, they would LIKE us to satisfy. They require us to render appropriate treatment, which is sometimes a well-stated medical diagnosis and treatment plan that has them going back to their PCM / psychiatrist / pain specialist for further evaluation and management of their pain-related issues.

  11. James Dellis says:

    We as providers also have a duty to the patient. We must keep in mind what is best for the patient, even if they don’t realize this. Preventing addiction is a standard universally accepted practice. Should the sign also say we will not cure your cold. CMS needs to be a part of the answer not stand behind the patient and deny all attempts by physicians to being pragmatic

  12. E says:

    1. Drug seekers won’t think twice about the sign. They are in far too much “pain”.
    2. It’s safe to say you didnt need treatment if you leave the ED after reading that sign.

  13. just me in the OR says:

    Interesting….
    I appreciate the link to EMTALA shown in the description above. It makes you review things word by word to see where the twist can be in the definition in this kind of issues. It is a shame, though, that as a medical professional we are pushed to do so in response to organizations that are not even exposed to the actual problems in real life. The lack of trust on medical professionals has turned our career into one in which you are guilty until proven otherwise, instead of innocent until proven otherwise. Such a sad perspective for most of the professionals that have chosen this way of life that has so many sacrifices for the good of strangers.

    Back to your question, and using the definition provided, there are gray areas that brought my attention:
    “1)The term “emergency medical condition” means—
    (A)a medical condition manifesting itself by acute symptoms of sufficient severity (INCLUDING SEVEE PAIN) such that the absence of immediate medical attention could reasonably be expected to result in—
    (i)placing the health of the individual (or, with respect to a pregnant woman, the health of the woman or her unborn child) in serious jeopardy,

    (ii)serious impairment to bodily functions”

    Such gray areas might be left to a vast possibilities (an MI vs a withdrawal).
    In either case, the sign does not say at all that any patient is refused evaluation. And mostly, it does address that “Our Emergency Department staff understands that pain relief is important when one is hurt or needs emergency care” BUT with a however afterwards.
    After this letter, if I would have such sign, I would include a sentence stating that in such determined EMERGENCIES pain will be addressed…and then add the however.

    Again….it is a shame that we are pushed to the fact that in our society we are guilty until proven otherwise.

  14. Eric says:

    It is clearly informational however we live in a world of litigation and legislative requirements on the practice of medicine which are not in our hands and therefore as we do not have the authority to create the enviornment we also, to the same extent, do not share in the responsibility for what it is or becomes. Sad really.

  15. Max Kennerly says:

    As CMS notes, the sign is a blatant misstatement of the standard of care, wrongly implying that the ED won’t treat severe pain as an urgent or emergent condition. It is. Severe pain, particularly with a sudden onset, demands at least a differential be done.

    If they want to put up a sign that says “we will screen and treat patients with severe pain, but we cannot prescribe medication to treat chronic pain you experience outside of the hospital,” that would probably be fine, but that wouldn’t be a good idea either, because then they’ll get people referring to their pain as “severe” to seek drugs. Better to leave it alone, and figure out what the patient really says.

    Lest there be confusion, it bears repeating here that no ED or EM physician has ever been held liable under EMTALA for failing to provide someone pain medication.

    • T H says:

      “…wrongly implying that the ED won’t treat severe pain as an urgent or emergent condition… severe pain… demands at least a differential done”

      No sir, the very first bullet point makes it clear that the ED WILL do such:

      ‘The primary role of the Emergency Medicine provider is to look for and treat an emergency medical condition. We will use our best medical judgment when treating pain…’

      I cut out ‘all legal and ethical guidelines': that should be struck because trying to follow all of them is clearly ridiculous.

      Most who are illicitly seeking drugs attempt to do so by deliberately misrepresenting themselves: out of meds, stolen meds, lost meds, overstating their actual pain, coming with their complaints then handing the rx over to someone else, etc. Their methods are myriad. ‘Severe’ or non-severe makes little difference.

      No one who has been on the job more than a couple months is confused about prescribing meds: prescribers can be held liable for direct and indirect actions of those to whom they prescribe. Example: after receiving morphine and being discharged, a patient is involved in an accident with a 3rd party (after pt was told not to drive): the DO/MD can still be held liable for the 3rd party injury.

      That – as much as anything else – is what I fear.

      No ED physician has been held liable for failing to provide pain medication: no, but when patient satisfaction becomes a major part of medical reimbursement, there are going to be some mighty irritible physicians and hospital administrators. And the gov’t will have us at each other’s throats for a problem that can’t be solved because of all the legal/ethical/moral mines placed by people who don’t actually treat patients.

      /rant

    • WhiteCoat says:

      Max –
      Long time no comment. Nice to see you back.
      Now a few clarifications.
      First, EMTALA only applies to medical conditions requiring immediate medical attention to avoid placing someone’s health in serious jeopardy, serious impairment of bodily function, or serious dysfunction of a bodily organ/part.
      Pain may be a *symptom* of an emergency medical condition, but it is not an EMC in and of itself because it cannot jeopardize health, impair bodily functions, or cause dysfunction to bodily organs. So you’re right that a reasonable nondiscriminatory screening exam has to be performed to determine what (if anything) is causing the pain, but in the absence of a condition meeting EMC criteria, EMTALA technically no longer applies – even if the pain is 10 of 10.
      Second, no physician could ever be held liable under EMTALA for failing to prescribe pain medications because the stabilizing requirement only applies to hospitals, not to medical providers. Physicians get dragged into the mix when they sign contracts with hospitals. The only way that a physician can be liable under EMTALA is if the physician misrepresents a patient’s medical condition or knowingly misrepresents the risks/benefits of transfer.
      Finally, the adverse actions against physicians are not limited to EMTALA. Civil actions, professional investigations/actions and hospital actions will likely all be pursued if a patient suffers a bad outcome and an EMTALA violation is alleged.
      Then, as TH notes above, there are those damn satisfaction scores.

  16. Jim McKeith says:

    This is one of the best written and well-reasoned signs I have seen attempting to deal with this complex matter. It does not say the ED will not treat acute pain, it says pain treatment is important and that we will approach it in a safe manner.

    The government criticized for under-treating pain so we went overboard and started treating everything probably leading to an increase in addiction/abuse/death from overdose.

    Now the fed’s are sending a mixed message, don’t over-treat but don’t post a clear, reasoned and well thought message to our patients about how we approach pain management.

    I think they deserve a quality award, not censure.

  17. Carla says:

    I think that when I bring my toddler in for what I believe is a life threatening issue and all of the rooms are full because there are addicts in them acting as if they are going to breathe their last breath if they don’t get whatever the drug du jour is, it is an issue. Especially when after hours you walk out of the ED and see these addicts standing impatiently in doorways complaining that doctors are taking “too d@mned long.” If you can stand there and complain about it, you should not be there. You are obviously not dying. It makes me want to go into said rooms and physically remove these people. I wish drug seekers would keep it to the corner dealers and not waste everyone’s time and resources. There needs to be SOMETHING done to discourage people from thinking that an emergency department is their one stop shop. It needs to be far less convenient for people to get narcotics from emergency departments.

  18. WarmSocks says:

    The sign doesn’t deter people who have true emergency, and it doesn’t say anyone will be denied appropriate care. It’s a hospital, not a restaurant.

    The urgent care clinic I went to Saturday had a similar sign. UC sent me to the ED, where they also had that sign.

  19. NorthShore says:

    It’s important to remember how EMTALA came about and that little of it had to do with ability to pay. Part of it stemmed from patient dumping but people were getting being dumped the other way too. In one specific case there was a kid who died from gunshot wounds. The hospital argued he wasn’t technically on their property. That led to ruling that “a patient must be within 200yds minimum” or hospital isn’t responsible.

    I think signs can deter all kinds. I might not want to go to your ER after a major accident if you’re signs indicated you’d be stingy with pain medication. That said, there needs to be an amendment addressing drug-seeking behavior. It would likely conflict with the ADA though as substance abuse is a disability. Technically, only former addicts are covered but then you run afoul of state laws where it is a violation to discriminate on the the basis of a real or perceived disability.

    So, no on the signage. You might as well say, “We don’t treat your kind here, Junkie.” Yes to reform though. A missed methadone dose? Okay. Only if you can verify you’re eligible. And a limit like only twice a year per hospital and after that, you’ll have to be more responsible.

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