By Dean J. Collins, Assistant Chief, Brookfield, Wisconsin, Police Department, and IACP Life Member; and Stephen A. Frew, JD, Vice President and Risk Consultant, Johnson Insurance Services, Madison, Wisconsin
olice chiefs throughout the United States are frequently confronted with situations where department overtime budgets are strained; physical effort levels are drained; and officers are frustrated by long, drawn-out attempts to access necessary medical care for victims, prisoners, suspects, and psychiatric patients in their local emergency departments. Many of these issues can be resolved proactively if the police administration makes effective use of federal hospital regulations to obtain cooperation from local hospital emergency departments.
While police chiefs are responsible for enforcing the criminal laws and complying with myriad regulations affecting departmental procedures, they are likely unaware of the equally large volume of regulations pertaining to hospitals and the enforcement process that can fine, or even close, hospitals in literally days. Among the most feared of these laws is the Emergency Medical Treatment and Active Labor Act (EMTALA). This law was passed in 1986 to restrict hospital “dumping,” or refusal of care because of financial issues. In the following years, the law and its regulations have developed into a complex set of rules that essentially guarantee timely access to emergency health care at hospitals to any and all patients. Properly applied, these rules can help generate hospital cooperation with police to expedite the process to care for patients and prisoners, return officers to the street sooner, cut resulting police expense, and promote effectiveness. Approached incorrectly, however, it can aggravate existing issues and result in a poor community image and potential liability concerns for both the police department and the hospitals involved.
Basics of the EMTALA
In the broadest of terms, the EMTALA requires hospitals—but not private doctor’s offices, clinics, or laboratories—to
- triage and medically screen, including appropriate testing and on-call specialist care, to rule out the presence of an emergency medical condition as defined by the law;
- render medical screening and stabilizing medical care without regard to means or ability to pay, and restrict registration processing to prevent financial discrimination;
- provide evaluation and stabilizing care within the hospital’s capabilities and not transfer unless the hospital is unable to meet the patient’s needs;
- provide a list of on-call specialists to back up the emergency department within the capacity of the hospital staff, and require that they respond in a timely manner to the call.
- follow detailed standards and requirements for transfers of patients, including the use of medical vehicles staffed with medical personnel and equipped with proper life-support capabilities (discharges fall within the definition of transfers, if the patient’s emergency medical condition has not been completely screened and resolved);
- document all elements of compliance carefully; and
- report suspected possible violations of the EMTALA by other institutions that result in a patient presenting at the reporting facility.
What Patients and Conditions Are Covered?
Although EMTALA law and regulations fall under Medicare, the provisions apply to any patient who “presents” (arrives) on an unscheduled basis requesting care. Family members, police, or any other person may make the request on behalf of the person and trigger the law. Federal EMTALA regulations have expanded the definition of “presents” to include any person on hospital property or within 250 yards of the main hospital building and patients in an ambulance crossing onto the property of the hospital. Any person who is on hospital property, who is not already an admitted patient, may trigger EMTALA if they demonstrate symptoms or appearance that would cause a prudent non–medical professional, including a police officer, to believe they need assessment and care.
Hospitals are required to have policies and procedures to respond to presenting patients who are known to be in need of assistance in the 250-yard zone (excluding nonhospital private property, businesses, and offices)—or in nonemergency portions of the hospital—and ultimately move the patient to an area where the medical screening exam and care may be provided.
To be entitled to a medical screening examination, the patient need only present under circumstances that the hospital, by its employees, becomes aware. Every person, no matter how minor their complaint seems, must receive a medical screening examination (MSE). Triage, however, is not the medical screening examination. Triage only determines the priority for patients to access the medical screening examination, which is generally performed by a physician. Triage may also determine whether the patient will be seen for medical screening in the main emergency department or in the fast-track portion of the emergency department. The patient may not be sent off-site for the medical screening examination, except where transfer to a higher level of care is medically required.
Unlike the common perception of emergency medical conditions as “life and limb” emergencies, the EMTALA includes any condition that left untreated might result in deterioration in condition or any compromise of any bodily organ or part.
In addition to obvious emergency conditions such as heart attack, multitrauma, gunshot wounds, head injuries, and medical emergencies, the law and regulations make several specific conditions legally defined emergency medical conditions. These specially designated protected conditions include
- pregnancy with contractions present;
- symptoms of substance abuse (including alcohol intoxication);
- symptoms of psychiatric disturbance (including suicide gestures, attempts, and so on); and
- severe pain.
While it is important for the police chief to understand the scope of the requirements, it is equally important that it be understood that the EMTALA requires all patients of similar presenting condition to be treated similarly. The patient does not acquire priority status because they present as a law enforcement–related situation. The law enforcement–related patient, however, must be provided equal treatment.
Scenario: Officers arrive at the emergency department with a prisoner who needs medical clearance before the jail will accept the prisoner. The prisoner states a lack of medical insurance, whereupon the admitting clerk instructs the officers to take the prisoner to another hospital.
Analysis: This situation involves multiple EMTALA issues.
First, the clerk obviously considers the presentation something other than an EMTALA event. The federal agency responsible for EMTALA enforcement, the Centers for Medicare and Medicaid Services (CMS), specifically advises that a request for medical clearance is a request for medical screening under the EMTALA.
Second, the financial information may have been illegally requested too early in the process. In any event, denying or delaying the patient medical screening based on the lack of insurance would be a clear EMTALA violation.
Third, sending the patient to another hospital without medical screening and without formal transfer compliance would likely result in multiple violations of EMTALA.
Scenario: Officers bring a prisoner who is complaining of chest pains to the emergency room. The officers and the prisoner wait for two to three hours before a physician examines the prisoner.
Analysis: Typically, a person complaining of chest pain would be provided expedited examination. The prisoner is entitled to the same evaluation and expedited care as anyone else of a similar condition.
If triage reveals a person is young and fit, and the pain arose following a physical event such as a fall, the patient may be determined to be a low risk for emergency and may be asked to wait a short time, but not delayed hours. The CMS must evaluate the delay and determine whether or not it was inappropriate. The ultimate determination of whether a violation is cited or not is based on what the presentation condition was, not whether the condition was ultimately determined to be heart related. No actual harm must come to the patient to result in a violation.
If there were no extenuating circumstances, this scenario is likely to be deemed a violation.
Scenario: Officers accompany a crime victim to the emergency department but are told that a specialist is needed to examine the victim. They are also told that the medical specialist cannot be located. The officers and the victim are told to go to the specialist’s office at another location or to go to another medical facility.
Analysis: Under EMTALA standards, the hospital is required to have specialists on-call for specialties on staff. If there are insufficient specialists for full-time coverage, or if the specialist is already engaged in surgery and cannot respond, the hospital is required to have policies and procedures on how to handle the situation. These may include backup call or transfer to another hospital.
It is not permissible to send a patient to a physician office outside of the hospital. It is not generally considered compliant if a hospital is unable to locate its on-call physician. It is definitely not permissible to send a patient to another hospital without full compliance with the transfer standards of certification, advance acceptance, and appropriate medical transport.
In addition, this scenario puts the officers in the position of having to assume responsibility for the welfare of the patient in a nonmedical setting. This poses substantial liability risks.
Scenario: Officers bring a mentally ill subject to the hospital for evaluation. The hospital staff states that they do not have psychiatric services and instruct the officers to transport the subject to another facility. The patient becomes violently ill shortly after leaving the hospital, and officers return to the first hospital. The officers are again sent to the next hospital.
Analysis: This basic scenario is an actual case cited by the CMS for multiple violations of the EMTALA.
Among the cited violations were
- failure to provide an MSE;
- failure to provide stabilizing care;
- discharge of an unstable patient;
- failure to obtain advanced approval for transfer;
- failure to properly document a transfer; and
- failure to transfer by appropriate vehicle, personnel, and equipment (two times).
Scenario: Officers accompany a crime victim with vague complaints of pain to the emergency room. The admitting clerk states that the medical condition is not serious enough to justify a medical examination.
Analysis: No clerk or other person can decide that a patient is not serious enough to justify a medical examination. The patient must be triaged and seen in priority order for a medical screening examination sufficient to rule out an emergency medical condition. Hospitals have repeatedly been cited for this activity.
Scenario: Officers accompany an incustody subject to the emergency room for pain caused by a fight. The admitting clerk states that no medical exam can be performed until the subject’s medical insurance company is contacted for preauthorization. The clerk further states that if the insurance company refuses to cover the visit, no exam will be performed.
Analysis: Financial preauthorization and conditioning exam on insurance approval or delaying the exam for approval are all specific EMTALA violations.
Scenario: Officers bring a fight subject with lacerations to the emergency department. Upon entry, the nurse advises the officer that the hospital is on diversion and that they will have to go elsewhere.
Analysis: Once a patient has presented, the EMTALA prohibits sending them elsewhere, even if the hospital is on diversion. The hospital must either care for the patient or assess the patient sufficiently to make a proper transfer. Instructing the police to take the patient elsewhere would be an EMTALA violation.
Scenario: Officers bring in a patient found outside the hospital and unable to move because of pain. They bring the patient into the hospital and ask for assistance from the triage nurse. The nurse refuses them assistance because the patient had been discharged earlier in the evening. As officers attempt to get the patient care, the patient is vomiting blood. Dispatch finally orders the patient brought to the jail hospital on an old warrant, but as the officers take the patient to the car, she dies of internal bleeding. Total time on scene was in excess of 45 minutes.
Analysis: This scenario is an actual case in 2007 that resulted in the closure of a major county hospital for this EMTALA violation. The hospital was already under CMS citations for a number of violations.
The EMTALA principle at issue in this case is that every patient has EMTALA rights and the hospital has obligations on each visit. The fact that the patient is a “frequent flyer” does not matter.
Seeking Proactive Solutions
EMTALA compliance and hospital cooperation are important policy and political issues for the chief. The EMTALA issues for the department should be addressed at the command level and not left to arguments between patrol officers and emergency department nurse managers in the middle of the night. Community perception of the professionalism of the police department and the hospital will often be judged by how well the chief handles the issue.
The emphasis in the chief’s argument should rest on patient welfare and better service to the community, while financial issues should be a distant (albeit important) final point. Department liability should probably be left out of the presentation unless a recent suit or judgment makes it a current issue of importance. Specific incidents and concerns should be documented with actual case reports, and a complete file should be prepared to share with hospital administration.
The most effective mechanism for gaining resolution to the issues is to meet with hospital administration to open the topic. The presentation generally goes best if the tone is one of opening some areas of concern for discussion. Nothing will get solved at the first meeting, as the hospital administration must research the material from their own records and reports to gain a better understanding of the issues. Be assured that in subsequent meetings, the hospital will have issues to raise about police attitudes, actions, or policies. This is an opportunity to resolve issues on both sides and promote a true solution, not win one round in a drawn-out battle. Street officers should be encouraged to be patient and cooperative and to document all problematic encounters.
Most police chiefs and hospital administrators understand the benefit of a well-functioning and cooperative relationship between hospitals and police departments. In some cases, however, style or attitude prevents a resolution of the issues. Often, this is a function of strong physician political pressure on the hospital or confrontational police officers in the emergency department.
The police chief needs to understand the ultimate enforcement options and what they mean to the hospital. EMTALA violations all result in a notice of termination from Medicare following a CMS verification inspection. While most hospitals survive the correction process, some do not. The EMTALA termination process is referred to as the “nuclear option” because of the devastating financial effects that may occur. Following the correction phase, hospitals and involved physicians are subject to fines of up to $50,000 per patient incident. Additionally, any patient harmed by the violation may sue for damages in federal court, as may other hospitals that have incurred expenses caring for the patient.
The ultimate option available to the chief is to report the full list of incidents to the regional office of the CMS. Unless a single case results in substantial publicity or a negative outcome for a patient, reporting single cases will not be a reliable road to correction. Minute details in a single case, like criminal prosecutions, can produce unpredictable results. Patterns of violation, however, are easier to prove, and CMS requires only a single violation to take enforcement action. In the absence of multiple allegations, however, some CMS offices are less likely to launch an investigation than others. ■
Please cite as:
Dean J. Collins and Stephen A. Frew, "How Police Can Use Hospital Laws to Speed Processing in Hospital Emergency Departments," The Police Chief 78 (December 2011): 28–32.