Waiting room documentation

[thegenius]

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For a young patient with normal vitals and a complaint of abdominal pain going to a busy ER I don't know that I would consider 6.5 hour wait unreasonable. Is it long--yes. Is it a bummer for the patient--yes. Is it ideal--no. But is this probably the norm at many hospitals in the country right now? Does the OIG think anybody with verbalized "10 out of 10" pain needs to come back immediately? A very large number of ER patients describe their pain as "10 out of 10" when asked at triage which then gets faithfully documented (even people with stubbed toes, tension headaches, superficial lacerations, etc.)

Again I am aware that YOU personally do not necessarily agree with the decisions of CMS and the OIG in these cases, but I'm just trying to understand by asking you an EMTALA expert what are the realistic solutions to these potential EMTALA pitfalls.

I'm just guessing...but I don't think the OIG really cares about the ultimate reality of implementing emergency medicine. Basically if I were the OIG and you were defending this case, I would look at you and say "i think it's unreasonable for this patient to wait 6 hours for an MSE." And you would say all those things above and I would say "I'm sorry, you violated the law." And fine you. As the OIG I don't really care about your hospital's troubles getting nursing staff, or whether you have available space, or whether people called out sick that day, or whether over the past few years other regional ER's have closed which has massively increased your volume, or whether you have efficient hospital processes for drawing blood, or anything of the sort. I don't think the OIG would have cited the hospital if the MSE started 15 minutes after arrival. 6 hours is a long time.

You might respond and say "every single ER in the nation commits an EMTALA violation every single day on multiple patients" and I would say "as the OIG I investigate every single EMTALA claim". I would have a straight face and you would be pissed off and that's it.

Now...in reality...what I would suggest is that your hospital ER come up with a policy to START an MSE on everyone fairly quickly of arriving to the ER. If that guy with the ruptured appy was seen by a doc or PA within 30-45 minutes of arriving and had labs and a CT ordered, and was put back in the waiting room, then it probably wouldn't be an EMTALA violation. Maybe his entire workup is completed while in the waiting room. That I don't think is an EMTALA violation. But it sounds like the dude just sat there for 6 hours in severe pain. I'm not surprised by the result of that investigation.

EDIT: Roybash I'm not trying to give you a hard time. But this is how I imagine the conversation going.

 

[thegenius]

That brings to mind something from my career. Any pt with an amputation reported their pain to be a 6 or a 7. Bar none, that was the pain scale. "5th Vital Sign", my a**.

LOL
maybe an amputation on average is a 6!
maybe a paper cut, on average, is an 8.

I've had paper cuts and they hurt like a motherfooka. At least an 8.

 

[southerndoc]

For a young patient with normal vitals and a complaint of abdominal pain going to a busy ER I don't know that I would consider 6.5 hour wait unreasonable. Is it long--yes. Is it a bummer for the patient--yes. Is it ideal--no. But is this probably the norm at many hospitals in the country right now? Does the OIG think anybody with verbalized "10 out of 10" pain needs to come back immediately? A very large number of ER patients describe their pain as "10 out of 10" when asked at triage which then gets faithfully documented (even people with stubbed toes, tension headaches, superficial lacerations, etc.)

Again I am aware that YOU personally do not necessarily agree with the decisions of CMS and the OIG in these cases, but I'm just trying to understand by asking you an EMTALA expert what are the realistic solutions to these potential EMTALA pitfalls.

Keep in mind that this occurred before Covid and all its negative effects on our healthcare system. However, there are similar ongoing cases right now and CMS seems to have no mercy.

Your initial review is almost always done by a nurse. Keep that in mind.

 

[southerndoc]

I'm just guessing...but I don't think the OIG really cares about the ultimate reality of implementing emergency medicine. Basically if I were the OIG and you were defending this case, I would look at you and say "i think it's unreasonable for this patient to wait 6 hours for an MSE." And you would say all those things above and I would say "I'm sorry, you violated the law." And fine you. As the OIG I don't really care about your hospital's troubles getting nursing staff, or whether you have available space, or whether people called out sick that day, or whether over the past few years other regional ER's have closed which has massively increased your volume, or whether you have efficient hospital processes for drawing blood, or anything of the sort. I don't think the OIG would have cited the hospital if the MSE started 15 minutes after arrival. 6 hours is a long time.

You might respond and say "every single ER in the nation commits an EMTALA violation every single day on multiple patients" and I would say "as the OIG I investigate every single EMTALA claim". I would have a straight face and you would be pissed off and that's it.

Now...in reality...what I would suggest is that your hospital ER come up with a policy to START an MSE on everyone fairly quickly of arriving to the ER. If that guy with the ruptured appy was seen by a doc or PA within 30-45 minutes of arriving and had labs and a CT ordered, and was put back in the waiting room, then it probably wouldn't be an EMTALA violation. Maybe his entire workup is completed while in the waiting room. That I don't think is an EMTALA violation. But it sounds like the dude just sat there for 6 hours in severe pain. I'm not surprised by the result of that investigation.

EDIT: Roybash I'm not trying to give you a hard time. But this is how I imagine the conversation going.

The MSE started quickly after arrival. The issue was MSE included the diagnosis of appendicitis, which in this case never occurred. The MSE isn't just assessing whether someone has stable vital signs. In many cases, CMS and OIG include diagnosis and treatment as part of the MSE.

 

[thegenius]

Your initial review is almost always done by a nurse. Keep that in mind.

I don't think a nurse starts an MSE, at least where I work. Or does it in all cases?
I thought that is defined by the hospital, who performs an MSE.

 

[southerndoc]

I don't think a nurse starts an MSE, at least where I work. Or does it in all cases?
I thought that is defined by the hospital, who performs an MSE.

I think I wasn't clear in what I was saying. I was referring to an initial EMTALA review (complaint) being investigated by a nurse. Who is able to perform an MSE at a healthcare facility is solely determined by your hospital bylaws. CMS defers to your bylaws for who is qualified to provide an MSE.

 

[gruemd]

I think I wasn't clear in what I was saying. I was referring to an initial EMTALA review (complaint) being investigated by a nurse. Who is able to perform an MSE at a healthcare facility is solely determined by your hospital bylaws. CMS defers to your bylaws for who is qualified to provide an MSE.

Maybe this is a dumb way to ask, but how can one become "better" at EMTALA knowledge? I feel like I didn't receive formal training on this, it was all sort of on-the-job, and when I try googling for resources I feel like the results are generic and just "don't violate it, mmk?" I'm pretty young in my career and want to be better equipped.

 

[thegenius]

Maybe this is a dumb way to ask, but how can one become "better" at EMTALA knowledge? I feel like I didn't receive formal training on this, it was all sort of on-the-job, and when I try googling for resources I feel like the results are generic and just "don't violate it, mmk?" I'm pretty young in my career and want to be better equipped.

I"ve been begging southerndoc to publish that database that he has. He could easily sell 10,000 copies. I would even help him write it.

I think we all have top level knowledge about the law, but knowing how CMS and OIG rule on marginal cases is extremely helpful.

I wish there was a public, online database of all CMS/OIG EMTALA rulings.

 

[xaelia]

From my database:

2014-06-05
Olive View - UCLA Medical Center - a county hospital in Sylmar, CA - entered into a settlement agreement with the Office of Inspector General (OIG) of the U.S. Department of Health and Human Services, effective May 23, 2014. The $40,750 settlement resolves allegations that Olive View violated the Emergency Medical Treatment and Labor Act, (EMTALA), by failing to provide an individual with an appropriate medical screening examination (MSE) within the capability of the hospital's emergency department in order to determine whether he had an emergency medical condition.

Specifically, the individual presented to the Olive View emergency department with signs of appendicitis and severe abdominal pain that he rated at a 10 on a 10-point scale. Despite his severe pain and symptoms, he was forced to wait for several hours to receive an MSE. After waiting for 6.5 hours, he left to seek medical screening and treatment at another hospital, where he was diagnosed with acute appendicitis with a large peritoneal abscess and had to undergo an immediate laparoscopic appendectomy. According to EMTALA, if an individual comes to a hospital emergency department and a request is made on his/her behalf for examination or treatment for a medical condition, the hospital must provide for an appropriate MSE within the capability of the emergency department to determine whether or not an emergency medical condition exists. OIG was represented by Associate Counsel Odies Williams, IV. Olive View was represented by Brandi M. Moore of the Los Angeles County Counsel's Office.

EDIT: Please note that is the summary released by OIG and not my summary. "Forced to wait" is a common language they use to describe EMTALA violations.

Almost this exact case also happened at Lyndon B. Johnson General Hospital during my time there and likewise resulted in a fine for EMTALA violation.

 

[southerndoc]

Almost this exact case also happened at Lyndon B. Johnson General Hospital during my time there and likewise resulted in a fine for EMTALA violation.

I'm actually not aware of that one. Please send me details via DM if you don't mind.

@thegenius I'm working on a book. Hopefully will be done by next summer.

 

[thegenius]

I'm actually not aware of that one. Please send me details via DM if you don't mind.

@thegenius I'm working on a book. Hopefully will be done by next summer.

Is there an online resource of EMTALA cases ruled on by CMS?

 

[southerndoc]

Is there an online resource of EMTALA cases ruled on by CMS?

You have to search for their press releases, which is where I get most of my stuff for my database.

 

[thegenius]

You have to search for their press releases, which is where I get most of my stuff for my database.

Enforcement Actions

Criminal, civil or administrative legal actions relating to fraud and other alleged violations of law, initiated or investigated by HHS-OIG and its law enforcement partners.

oig.hhs.gov

I guess this is the closest I can find. At the top of the page type "EMTALA" and I get about 175 hits.

 

[thegenius]

I wonder how to interpret something like this:
Tristar Centennial Medical Center - Multiple Psychiatric Violations - 2021

Each of these the patients could have been admitted to the TCMC psych unit but were not (I can see that as a violation)

also, what about not receiving stabilizing treatment in the ER? Did these patients sit around and receive literally nothing? Not a single drug?
Would it still be a violation if they received a drug(s) but still having delusions and psychosis?

Perhaps this is unique case because TCMC could have admitted all of these people because they have their own psych unit.

 

[southerndoc]

I wonder how to interpret something like this:
Tristar Centennial Medical Center - Multiple Psychiatric Violations - 2021

Each of these the patients could have been admitted to the TCMC psych unit but were not (I can see that as a violation)

also, what about not receiving stabilizing treatment in the ER? Did these patients sit around and receive literally nothing? Not a single drug?
Would it still be a violation if they received a drug(s) but still having delusions and psychosis?

Perhaps this is unique case because TCMC could have admitted all of these people because they have their own psych unit.

Yes, it's because they have their own psych unit. AnMed Health entered into a settlement agreement with OIG for $1.3 million for failure to admit patients to its own psychiatric unit because they had a policy that they would not accept 1013 patients in their inpatient psychiatric unit.

20% of EMTALA violations between 2002-2018 involved psychiatric complaints.

Here's an excellent article to describe when a psychiatric patient is considered stable by CMS: When is a Psychiatric Patient Stable under Federal Law, EMTALA?

Basically, suicidal patients are considered unstable until they are no longer suicidal.

 

[thegenius]

Yes, it's because they have their own psych unit. AnMed Health entered into a settlement agreement with OIG for $1.3 million for failure to admit patients to its own psychiatric unit because they had a policy that they would not accept 1013 patients in their inpatient psychiatric unit.

20% of EMTALA violations between 2002-2018 involved psychiatric complaints.

Here's an excellent article to describe when a psychiatric patient is considered stable by CMS: When is a Psychiatric Patient Stable under Federal Law, EMTALA?

Basically, suicidal patients are considered unstable until they are no longer suicidal.

I've read Bitterman's stuff before, it's good. In this case it's nice to have an MD and a JD

What's also interesting is Bitterman wholly disagreed with the OIG's definition of whether these psychiatric patients were stable at time of transfer.

 

[thegenius]

I've read Bitterman's stuff before, it's good. In this case it's nice to have an MD and a JD

What's also interesting is Bitterman wholly disagreed with the OIG's definition of whether these psychiatric patients were stable at time of transfer.

The more I read about EMTALA the more confusing it is. A link from Bitterman's article lead to Harry v Marchant, which discusses whether hospitals need to stabilize patients they do not transfer:

"Like this Circuit, no other Circuit has squarely addressed whether EMTALA's stabilization requirement imposes an obligation on hospitals to provide treatment to individuals outside the context of a transfer.[13] To date, cases from other Circuits discussing EMTALA's stabilization requirement have addressed only tangential issues arising out of an alleged failure to provide an appropriate medical screening, an alleged failure to stabilize an emergency medical condition prior to an actual transfer, or a combination thereof.[14] We, 775*775 therefore, rely solely on the clear language of the statute in reaching our conclusion."

 

[thegenius]

@RoyBasch
This is a timely link. It just came out two days ago. This is a discussion of an ongoing case in Virginia of a pt who waited over 12 hours to receive an EMC, ended up having a cardiac arrest (from DKA), and survived. He and his team are suing the hospital under the EMTALA statue citing "a failure to receive an appropriate medical screening examination." In this case, it's all about definition of appropriate, and he is claiming it was inappropriate to wait 12 hours to get an MSE.

Case is still ongoing. No resolution yet.

Overcrowded Emergency Department Leads to Lawsuit Over EMTALA |…

A patient, Scruggs, presented to Danville (VA) Regional Medical Center (DRMC) ED about 2 a.m. complaining of two days of prolonged dry heaves. He was…

www.reliasmedia.com

EDIT: There might be a firewall issue or something. Here is the article:

MOD EDIT: Article removed due to copyright restrictions. The link above seems to work without needing registration or paying. Sorry for needing to remove the article. -southerndoc

 

[bearstanley]

@RoyBasch
This is a timely link. It just came out two days ago. This is a discussion of an ongoing case in Virginia of a pt who waited over 12 hours to receive an EMC, ended up having a cardiac arrest (from DKA), and survived. He and his team are suing the hospital under the EMTALA statue citing "a failure to receive an appropriate medical screening examination." In this case, it's all about definition of appropriate, and he is claiming it was inappropriate to wait 12 hours to get an MSE.

Case is still ongoing. No resolution yet.

Overcrowded Emergency Department Leads to Lawsuit Over EMTALA |…

A patient, Scruggs, presented to Danville (VA) Regional Medical Center (DRMC) ED about 2 a.m. complaining of two days of prolonged dry heaves. He was…

www.reliasmedia.com

EDIT: There might be a firewall issue or something. Here is the article:

super interesting, thanks for sharing. where should i be looking for more reading like this, on current medicolegal topics?

MOD EDIT: Article in quoted text removed due to copyright restrictions. The link above seems to work without needing registration or paying. Sorry for needing to remove the article. -southerndoc

 

[NYEMMED]

For a young patient with normal vitals and a complaint of abdominal pain going to a busy ER I don't know that I would consider 6.5 hour wait unreasonable. Is it long--yes. Is it a bummer for the patient--yes. Is it ideal--no. But is this probably the norm at many hospitals in the country right now? Does the OIG think anybody with verbalized "10 out of 10" pain needs to come back immediately? A very large number of ER patients describe their pain as "10 out of 10" when asked at triage which then gets faithfully documented (even people with stubbed toes, tension headaches, superficial lacerations, etc.)

Again I am aware that YOU personally do not necessarily agree with the decisions of CMS and the OIG in these cases, but I'm just trying to understand by asking you an EMTALA expert what are the realistic solutions to these potential EMTALA pitfalls.

Look at it from this lens.

The government, (IE CMS and OIG) don’t care about playing fair and even. This is a fine and a “tax” and they get patted on the back for collecting the fines.

The system was never made to be fair, it was made to make money.

Therefore there is no reasonable way to mitigate, they will always find a way to fine you

 

[southerndoc]

I've read Bitterman's stuff before, it's good. In this case it's nice to have an MD and a JD

What's also interesting is Bitterman wholly disagreed with the OIG's definition of whether these psychiatric patients were stable at time of transfer.

Yeah, but his disagreement doesn't mean anything to OIG. I truly believe they start their opening meeting/investigation as guilty until proven innocent.

 

[RoyBasch]

Very interesting, and very well referenced.

Substantive legal analysis

The real issue of this case is whether an "appropriate" MSE should be construed to mean a reasonably prompt MSE.7 Said another way, does the EMTALA statute or regulations require the MSE to be performed within a certain period of time after the patient's arrival to the ED?

The Centers for Medicare & Medicaid Services (CMS) specifically instructs its state survey investigators to examine "emergency department visits where the patient is logged in for an unreasonable amount of time before the time indicated for commencement of the medical screening examination."8 CMS has cited hospitals for unreasonably delaying the provision of MSEs to indigents when no other emergencies were being treated, based on the premise that delay of access is equivalent to denial of access. But in each case there was obvious discrimination or disparate treatment; it was not a situation in which someone, as did all others in the same triage category, had to wait an inordinate amount of time simply because the ED was overwhelmed.9

I find this part particularly interesting, that their not trying to fault hospitals with long waits where "simply because the ED was overwhelmed," but rather situations where it seems to me that patients are maliciously and unnecessarily being made to wait on account of financial status to essentially dissuade the patient from seeking care. ("unreasonably delaying the provision of MSEs to indigents when no other emergencies were being treated...But in each case there was obvious discrimination or disparate treatment;"


At any rate though, these are dangerous precedents that any ER by virtue of being very busy (which is very commonplace these days in the pandemic-staffing crisis) is now at risk of significant liability.

I am unsure what the "solutions" to these problems and risks may be.

 

[RoyBasch]

Look at it from this lens.

The government, (IE CMS and OIG) don’t care about playing fair and even. This is a fine and a “tax” and they get patted on the back for collecting the fines.

The system was never made to be fair, it was made to make money.

Therefore there is no reasonable way to mitigate, they will always find a way to fine you

That's essentially what I'm getting at. It's just super frustrating that this specialty puts a target on your back in a way that no amount of skill, experience, and procedural knowledge can mitigate.

 

[thegenius]

Yeah, but his disagreement doesn't mean anything to OIG. I truly believe they start their opening meeting/investigation as guilty until proven innocent.

It sounds like if you are given a judgement by the OIG, you can appeal it and go to the circuit courts, I think.

 

[thegenius]

Very interesting, and very well referenced.




I find this part particularly interesting, that their not trying to fault hospitals with long waits where "simply because the ED was overwhelmed," but rather situations where it seems to me that patients are maliciously and unnecessarily being made to wait on account of financial status to essentially dissuade the patient from seeking care. ("unreasonably delaying the provision of MSEs to indigents when no other emergencies were being treated...But in each case there was obvious discrimination or disparate treatment;"


At any rate though, these are dangerous precedents that any ER by virtue of being very busy (which is very commonplace these days in the pandemic-staffing crisis) is now at risk of significant liability.

I am unsure what the "solutions" to these problems and risks may be.

yea it's a very hard thing. If one can prove that the average wait in an ER is 6 hours, literally all the time, then maybe hard to bring forth an EMTALA claim on that matter.

Prima facie...I think taking hours to initiate chest pain evaluation in a >40 yo or 1/2 day to evaluate any variety of thoracoadominal complaint is bound to levy all sorts of EMTALA and malpractice suits.

 

[GonnaBeADoc2222]

At any rate though, these are dangerous precedents that any ER by virtue of being very busy (which is very commonplace these days in the pandemic-staffing crisis) is now at risk of significant liability.

I am unsure what the "solutions" to these problems and risks may be.

There is no "pandemic staffing crisis." The same way that there is no "physician shortage."

These are all words for hospitals to say "we don't want to pay the price for the asset what we need, and right now the medicolegal and financial situation is allowing us to do this."

 

[Vandalia]

For a young patient with normal vitals and a complaint of abdominal pain going to a busy ER I don't know that I would consider 6.5 hour wait unreasonable. Is it long--yes. Is it a bummer for the patient--yes. Is it ideal--no. But is this probably the norm at many hospitals in the country right now? Does the OIG think anybody with verbalized "10 out of 10" pain needs to come back immediately? A very large number of ER patients describe their pain as "10 out of 10" when asked at triage which then gets faithfully documented (even people with stubbed toes, tension headaches, superficial lacerations, etc.)

Again I am aware that YOU personally do not necessarily agree with the decisions of CMS and the OIG in these cases, but I'm just trying to understand by asking you an EMTALA expert what are the realistic solutions to these potential EMTALA pitfalls.

Do you think a patient who had "acute appendicitis with a large peritoneal abscess" had normal vitals?

 

[RustedFox]

Do you think a patient who had "acute appendicitis with a large peritoneal abscess" had normal vitals?

I'll bet he did.

 

[turkeyjerky]

Seems to me that the OIG is out of control w/ their interpretation of emtala. I wasn't around when it was passed, so I might be a little off, but I've always read and heard that it was primarily intended as a non-discrimination statute (which imho is entirely necessary).

Where's ACEP in lobbying Congress to pass supplementary legislation clarifying this?

 

[CoolDoc1729]

Do you think a patient who had "acute appendicitis with a large peritoneal abscess" had normal vitals?

I think it’s real possible. My waiting room 11 cm ruptured aortic aneurysm did.

 

[CajunMedic]

Yea someone wrote a few years ago about an EMTALA violation. It basically went like this: a young guy goes to an ER for abdominal pain. Waited 4-5 hours in the waiting room, LWBS or eloped (in this case doesn't really matter) and went to another hospital. Diagnosed with acute appendicitis and pt did well. First hospital cited for an EMTALA violation for failing to recognize and stabilize a patient with an emergency diagnosis.

My limited understanding is that it's considered "refusal to provide an MSE" when they wait for any significant length of time.

Your initial review is almost always done by a nurse. Keep that in mind.

This includes the state level. Some Karen called the state when we were at our worst boarding and waiting room situation and that brought in the state investigators. Apparently, that state agency had the authority to report us to CMS/OIG. They sent in 2 clipboard nurses who hadn't seen patients in 20 years, who with straight faces told us we needed to offer transfer to every patient (despite us being the tertiary referral center for the entire southern half of the state), we couldn't start treatment in the waiting room, and we now needed to have every patient sign more paperwork consenting or refusing transport.

Where I am now, if a resident or I see someone in the waiting room, we can usually get them in an ED bed or discharged from the WR without too much fanfare. During residency, I had a dot phrase that said "Pt. seen in the waiting room in the context of COVID-19 and ED/Hospital overcrowding. Labs, imaging studies, and appropriate medications will be ordered and the patient will be placed in a bed when one becomes available. They have been instructed to notify hospital personnel if they feel there has been a change in their condition and have verbalized understanding"

They wound up hiring Paramedics once they jumped through the regulatory hurdles to take vitals, start IV's, etc. to free up nurses.

 

[evert1de101]

Seems to me that the OIG is out of control w/ their interpretation of emtala. I wasn't around when it was passed, so I might be a little off, but I've always read and heard that it was primarily intended as a non-discrimination statute (which imho is entirely necessary).

Where's ACEP in lobbying Congress to pass supplementary legislation clarifying this?

"Where's acep ______ (doing anything but hiring tiktok celebrity speakers)"